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THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Law:    Its    Origin 
Growth  and  Function 


James  Coolidge  Carter 

From  the  filing  by  James  S.  Kin- 

James  C^kig^8'@5W 

of  the  New  York 


Law:    Its    Origin 


Being  a  Course  of  Lectures  Prepared  for 

Delivery  before  the  Law  School 

of  Harvard  University 


By 

James  Coolidge  Carter,  LL.D, 

of  the  New  York  Bar 


G.  P.  Putnam's  Sons 

New   York    and    London 

dbe  Unicfcerbocfeer  press 

1907 


COPYRIGHT,  1907 


G.  P.  PUTNAM'S  SONS 


c  zy 


L. 


Ube  'Btnichei-bochcc  press,  'View  fork 


PREFATORY  NOTE 

THE  origin  and  nature  of  law,  both  written  and 
unwritten;  its  growth  and  development;  its  function 
in  the  social  order;  its  powerful  influence  as  an 
effective  force  in  the  progress  and  civilisation  of 
mankind;  the  importance  of  distinguishing  between 
the  nature  of  written  and  unwritten  law  and,  ascer- 
taining the  proper  and  legitimate  province  of  each, 
were  subjects  which  possessed  for  Mr.  Carter  an 
absorbing  interest  and  to  which  he  devoted  much 
attention,  particularly  during  the  last  few  years  of 
his  life,  when  his  retirement  from  active  practice 
afforded  him  more  opportunity  for  study  and 
reflection. 

The  general  field  of  inquiry  was  not  new  to  him, 
for  at  a  much  earlier  period,  when  still  in  the  full 
tide  of  professional  activity  and  burdened  by  the 
exacting  demands  of  a  large  and  important  practice 
at  the  Bar,  he  had  taken  the  principal  part  in  op- 
posing the  adoption  by  the  State  of  New  York  of  the 
well  known  Civil  Code,  of  which  the  late  David  Dud- 
ley Field  was  the  author;  and  this  task  and  the 
inquiries  which  it  led  him  to  make,  were  pursued  by 
him  with  the  keenest  interest. 

The  arguments  which  he  then  framed  and  ad- 
dressed to  successive  legislatures  and  governors, 
led  to  the  final  rejection  of  the  proposed  Code.  His 


709351 


iv  Prefatory  Note 

views  were  published  in  a  series  of  pamphlets,  the 
first  of  which  appeared  in  1883  under  the  title  The 
Proposed  Codification  of  our  Common  Law.  Five 
years  later,  he  delivered  an  address  before  the  Vir- 
ginia State  Bar  Association,  which  was  afterwards 
published  under  the  title  of  The  Provinces  of  the 
Written  and  Unwritten  Law,  and  later,  in  1890, 
an  address  before  the  American  Bar  Association 
upon  The  Ideal  and  the  Actual  in  the  Law 
embodied  further  views  and  reflections  upon  the 
same  general  topics.  It  was  to  the  study  devoted 
to  these  subjects  in  the  somewhat  brief  periods  of 
leisure  permitted  by  the  demands  of  his  active 
professional  work  that  Mr.  Carter  himself  attributed 
the  deep  and  absorbing  interest  which  they  possessed 
for  him. 

After  his  retirement  from  active  practice,  he 
determined  to  devote  a  portion  of  his  leisure  to 
writing  a  somewhat  more  important  and  complete 
expression  of  his  views  on  these  topics  than  had  been 
contained  in  his  former  pamphlets  and  addresses 
but  at  the  suggestion  of  President  Eliot,  of  Harvard 
University,  he  substituted  for  this  proposed  work  a 
series  of  lectures  to  be  delivered  before  the  Law 
School  of  that  University.  I  find  among  his  papers 
a  brief  memorandum  in  his  handwriting,  evidently 
written  before  this  change  of  purpose  and  intended 
as  a  suggestion  for  a  preface  to  the  work  which  he 
at  first  designed  to  write.  It  is  endorsed  "By  Way 
of  a  Possible  Preface, "  and  is  as  follows: 

It  happened  to  me  many  years  ago  to  be  appointed  by  the 
Association  of  the  Bar  of  the  City  of  New  York  upon  a  Com- 


Prefatory  Note  v 

mittee  charged  with  the  duty  of  opposing  a  bill  which  had 
been  introduced  into  the  Legislature  of  that  State,  entitled 
"An  Act  to  Establish  a  Civil  Code. " 

This  proposed  Code  purported  to  be  the  work  of  a  Legis- 
lative Commission  which  had  been  created  by  an  Act  of  the 
same  Legislature,  adopted  many  years  before,  and  at  the  head 
of  which  was  the  late  David  Dudley  Field ;  but  it  was  in  fact, 
as  he  often  declared,  entirely  his  own  work.  This  eminent 
lawyer  was  a  man  of  great  intellectual  audacity,  the  worthy 
disciple  in  that  particular  of  Jeremy  Bentham.  He  would 
not  tolerate  the  suggestion  that  there  was  any  unsurmount- 
able  difficulty  in  reducing  into  statutory  form  the  entire  body 
of  the  law  which  governs  the  private  transactions  of  men. 
He  insisted  that  the  whole  of  it  could  be  embraced  in  a  volume 
of  very  moderate  size  and  that  its  adoption  would  substan- 
tially supersede  the  necessity  of  consulting  that  prodigious 
record  of  judicial  precedent  which  fills  so  many  thousand  vol- 
umes and  has  been  hitherto  deemed  an  essential  part  of  the 
furniture  of  every  complete  law  library.  Moved  by  the 
high  incitements  of  conferring  upon  society  a  benefit  so 
prodigious,  and,  as  we  may  suppose,  of  achieving  for  his  own 
name  a  renown  like  that  bestowed  upon  the  great  law-givers 
of  mankind,  he  threw  himself  into  the  enterprise  of  procuring 
the  enactment  of  his  proposed  code  with  the  greatest  energy 
and  prosecuted  it  for  years  with  the  utmost  persistency.  This 
made  the  task  of  opposition  extremely  laborious  and  the  chief 
burden  happened  to  fall  upon  myself. 

I  was  thus  led  into  inquiries  concerning  the  distinctions 
between  written  and  unwritten  law  and  was  unable  to  find 
that  these  distinctions  had  ever  been  to  any  considerable 
extent  pointed  out. 

I  was,  however,  led  to  entertain  much  doubt  concerning 
the  correctness  of  the  conceptions  most  widely  accepted  of 
the  nature,  scope,  and  authority,  not  only  of  the  written,  but 
of  the  unwritten  law.  and  came  to  think  that,  notwithstanding 
the  number  of  treatises  upon  the  subject,  the  original  sources 
and  nature  of  what  may  be  called  jurisprudence  had  never 


vi  Prefatory  Note 

been  sufficiently  explored;  in  particular  the  definition  of  law 
as  a  command,  laid  down  by  Austin  and  carried  out  into  all 
its  logical  consequences  by  him,  resting  as  it  does,  so  far  as 
the  unwritten  law  is  concerned,  upon  a  manifest  fiction,  and 
confounding,  as  it  also  does,  the  separate  provinces  of  the 
written  and  unwritten  law,  seemed  to  me  to  be  a  fundamental 
error. 

These  defects,  or  errors,  as  they  seem  to  me  to  be,  in  the 
current  theories  of  our  jurisprudence,  I  impute  to  an  under- 
estimate among  the  members  of  our  profession  of  the  im- 
portance of  theoretical  inquiries.  The  most  distinguished 
of  our  lawyers  and  judges  are  prone  to  regard  with  a  species 
of  disdain  any  resort  in  forensic  argument  to  elementary 
principles,  and  comparatively  little  attention  is  given  in  our 
schools  of  law  to  the  scientific  study  of  the  foundations  of  our 
legal  institutions. 

This  is  very  much  to  be  regretted.  To  eulogise  the  law 
as  one  of  the  highest  of  human  sciences  and  yet  neglect  to 
inquire  what  kind  of  a  science  it  is,  whether  it  rests  upon  a 
priori  conceptions  or  is  the  fruit  of  an  induction  from  the 
facts  of  human  experience;  whether  it  is  the  conscious  com- 
mand of  a  supreme  authority  or  an  unconscious  growth  in  the 
life  of  human  society,  is  an  inconsistency  of  which  professed 
students  should  not  be  guilty. 

The  interest  aroused  in  me,  in  the  manner  above  indicated, 
in  the  theoretic  foundations  of  our  law,  and  my  sense  of  the 
importance  of  such  studies,  have  moved  me  to  publish  some 
of  the  conclusions  which  seem  to  me  well  founded  and  the 
grounds  upon  which  they  may  be  supported.  I  am  not  so 
presumptuous  as  to  think  them  in  any  way  final  or  anything 
more  than  a  contribution  to  a  discussion,  which,  if  suffi- 
ciently stimulated,  must  be  fruitful  in  most  important  and 
serviceable  truth. 

Mr.  Carter's  sense  of  the  importance  of  the  in- 
quiries which  he  thus  describes,  and  the  strong 
affection  which  he  always  entertained  for  his  Alma 


Prefatory  Note  vii 

Mater  and  which  led  him  to  adopt  for  the  expression 
of  his  ripened  and  mature  views  the  form  of  lectures 
for  delivery  before  its  Law  School,  are  touchingly 
shown  by  a  provision  of  his  will  whereby  he  gave 
a  large  sum  to  the  President  and  Fellows  of  Harvard 
College  "which,"  he  said,  "I  now  wish  may  be  ap- 
plied to  the  establishment  and  maintenance  in  the 
Law  School  of  the  University  of  a  professorship  of 
General  Jurisprudence  for  the  special  cultivation 
and  teaching  of  the  distinctions  between  the  pro- 
vinces of  the  written  and  unwritten  law;  but  I  do 
not  intend  to  control  the  discretion  of  the  donees 
in  respect  to  the  application  of  this  fund.  I  mention 
my  present  preference."  This  was  in  addition  to 
another  large  gift  for  the  general  purposes  of  the 
University. 

It  was  Mr.  Carter's  intention  to  deliver  the  lectures 
in  the  spring  of  1905,  and  the  rough  draft  of  the 
manuscript  was  completed  only  a  few  days  before  he 
was  stricken  with  the  brief  illness  which  resulted  in 
his  death  on  February  14,  1905.  When  he  realised 
that  he  could  never  deliver  the  lectures,  he  ex- 
pressed a  wish  that  they  be  published  by  his 
Executors. 

The  manuscript  had  never  been  finally  revised 
by  him;  but  it  has  been  thought  best  to  print  this 
volume  from  it  just  as  it  left  his  hand,  save  the 
making  of  a  few  verbal  corrections. 

L.  C.  L. 

NEW  YORK,  June,  1907. 


LAW,  ITS  ORIGIN,  GROWTH 
AND  FUNCTION 


LECTURE  I 

A  COMPLETE  study  of  the  law  would  embrace 
three  successive  efforts.  The  first  would  be  to 
acquire  a  knowledge  of  those  rules  which  make  up 
the  law,  as  mere  isolated  rules;  and  this  might  be 
sufficient  for  a  considerable  degree  of  skill  and  pro- 
ficiency in  practice.  The  next  would  be  to  compre- 
hend those  rules  as  parts  of  a  classified  and  orderly 
system  exhibiting  the  law  as  a  science;  and  who- 
ever aspires  to  be  a  thoroughly  accomplished  lawyer 
must  take  this  step.  The  third  and  final  effort 
would  be  to  explore  the  realms  of  science  which 
lie  beyond  the  immediate  boundaries  of  the  law, 
and  ascertain  its  origin,  its  essential  nature,  the 
method  of  its  development,  the  function  it  fills  in 
human  society,  and  the  place  it  occupies  in  the  gen- 
eral system  of  human  knowledge;  in  other  words, 
to  learn  what  is  termed  the  Philosophy  of  the  Law. 
The  means  for  prosecuting  the  first  two  of  these 
efforts  have  been,  in  a  reasonable  measure,  already 
supplied.  The  decisions  of  a  multitude  of  tribunals 


2  Law,  Its  Origin 

sitting  during  successive  ages,  and  diligently  re- 
corded, furnish  abundant  material  from  which  to 
gain  a  knowledge  of  what  the  law  at  present  is,  and, 
besides  these,  we  have  numerous  treatises,  many  of 
them  thorough  and  admirable,  together  with  codes 
both  of  ancient  and  modern  states,  all  aiming  to 
reduce  the  law  into  a  scientific  form. 

In  the  third  and  last  stage  of  legal  study,  how- 
ever, comparatively  little  progress  has  been  made. 
There  are  several  reasons  for  this.  In  the  first  place, 
there  is,  in  the  economic  sense,  but  little  demand 
for  this  sort  of  knowledge.  Courts  are  always  eager 
to  listen  to  intelligent  discussion  concerning  particu- 
lar rules,  or  the  general  heads  in  the  law  to  which 
such  rules  should  be  referred;  but  their  concern  is 
mainly  with  practical  affairs,  and  they  are  inclined 
to  be  impatient  of  discussions  which  have  but  a 
remote  pertinency,  and  to  them  all  mere  philosophy 
is  apt  to  seem  remote.  Lawyers,  even  the  most 
accomplished,  feel  little  inclination  towards  studies 
which  seem  to  afford  but  a  small  measure  of  practical 
utility,  and  most  efforts  in  the  field  of  Legal  Philo- 
sophy are  characterised  with  a  polite  sneer  as 
being  academic.  Moreover  this  branch  of  knowledge 
being  part  of  the  field,  not  strictly  of  Law,  but  of 
Sociology,  has  necessarily  been  kept  in  abeyance  by 
the  circumstance  that  Sociology  itself  is  but  a  recent 
study.  Add  to  this  the  intrinsic  difficulty  of  the 
subject,  and  we  need  not  wonder  at  the  little  pro- 
gress made  in  its  development. 

The  criticism  that  such  studies  are  academic  is 
true,  but  it  should  by  no  means  discredit  them.  It 


Growth  and  Function  3 

is  their  highest  recommendation;  for  it  means  that 
they  are  such  as  are  usually  pursued  in  universities, 
and  it  is  in  such  places,  pre-eminently,  that  the 
highest  and  most  useful  knowledge  is  taught.  All 
university  teaching  is,  or  should  be,  scientific  and 
philosophical;  and  never  rests  satisfied  as  long  as  a 
further  step  may  be  taken  or  a  larger  generalisation 
reached. 

But  if  proof  be  needed  of  the  immediate  practical 
utility  of  such  knowledge  it  may  be  found  in  abund- 
ance in  the  present  condition  of  legislation.  I  speak 
of  this  country,  but  without  meaning  to  imply  that  it 
is  worse  here  than  elsewhere.  There  are  a  vast  number 
of  laws  on  the  statute-books  of  the  several  States 
which  are  never  enforced,  and  generally  for  the 
reason  that  they  are  unacceptable  to  the  people. 
There  are  great  numbers  of  others  the  enforcement 
of  which,  or  attempts  to  enforce  which,  are  produc- 
tive of  bribery,  perjury,  subornation  of  perjury, 
animosity  and  hate  among  citizens,  useless  expendi- 
ture, and  many  other  public  evils.  All  these  are 
fruits  of  the  common  notion,  to  correct  which  but 
little  effort  is  anywhere  made,  that  a  legislative 
enactment  is  necessarily  a  law,  and  will  certainly 
bring  about,  or  help  to  bring  about,  the  good  in- 
tended by  it,  whereas  such  an  enactment,  when 
never  enforced,  does  not  deserve  the  name  of  law 
at  all,  and  when  the  attempted  enforcement  of  it 
is  productive  of  the  mischiefs  above-mentioned,  it 
is  not  so  much  law  as  it  is  tyranny.  Among  the 
evils  which  oppress  society,  there  are  few  greater  than 
that  caused  by  legislative  expedients  undertaken 


4  Law,  Its  Origin 

in  ignorance  of  what  the  true  nature  and  func- 
tion of  law  are,  and  the  effective  remedy — at  least 
there  is  no  other — lies  in  an  effort  to  correct  this 
ignorance  by  knowledge. 

This  neglect  of  the  problems  underlying  our  legal 
systems  has  left  important  points  in  our  judicial 
literature  in  much  confusion,  and  this  is  very  mani- 
fest in  the  multiform  definitions  which  have  been 
given  of  Law.  It  might  be  thought  that  the  oldest 
and  most  necessary  function  of  human  society,  and 
one  which  from  the  dawn  of  speculation  has 
engaged  the  attention  of  the  most  superior  and  dis- 
ciplined minds,  would  have  received  a  final  interpre- 
tation commanding  general  assent;  but  the  case  is 
quite  otherwise.  The  various  definitions  exhibit  the 
greatest  diversity,  both  in  expression  and  in  sub- 
stance. They  are  generally  vague  and  uninstructive, 
sometimes  conflicting  and  irreconcilable,  and  scarcely 
any  will  endure  a  close  scrutiny. 

I  may  illustrate  this  diversity  by  instances,  most 
of  which  I  gather  from  Prof.  Holland's  recent  work 
on  The  Elements  of  Jurisprudence.  Cicero,  who,  with 
other  Roman  jurists,  was  wont  to  regard  what  was 
termed  the  Law  of  Nature  as  the  foundation  of  all 
law,  in  one  place  thus  defines  it1:  "Lex  est  recta 
ratio  imperandi  atque  prohibendi" ;  in  another  thus 
"Lex  nihil  aliud  nisi  recta  et  a  numine  deorum  tracta 
ratio,  jubens  honesta,  prohibens  contraria."2  Such 
definitions  can  hardly  be  said  to  define  anything. 
Assigning  to  the  law  a  divine  source  and  authority, 
and  identifying  it  with  "right  reason,"  is  but  a  con- 

»  De  Leg.,  i.,  15.  2  Phil.,  xi.f  12. 


Growth  and  Function  5 

fession  of  inability  to  define  or  explain  it.  It  is  but 
saying  that  law  is  so  far  the  product  of  our  highest 
reason  that  no  human  origin  can  be  assigned  to  it, 
and  therefore  that  its  source  and  authority  must  be 
divine.  And  to  say  that  the  law  is  what  commands 
the  honest  and  just  to  be  done  is  but  moving  in  a 
circle,  for  if  we  were  to  inquire  what  is  honest  and 
just  the  only  answer  would  be  what  the  law  com- 
mands. A  definition  by  Hooker  is  very  concisely 
expressed,  but  marked  by  the  same  vagueness: 
"That  which  reason  in  such  sort  defines  to  be  good 
that  it  must  be  done."1  What  is  this  reason  from 
which  law  thus  proceeds,  and  where  is  it  to  be 
found,  and  how  does  it  act  in  determining  what  is 
good  ?  Men  may  have  different  conceptions  of  reason, 
and  be  led  by  them  to  very  different  conclusions 
concerning  law.  The  German  philosopher  Kant 
defines  law  as  "the  sum  total  of  the  conditions  under 
which  the  personal  wishes  of  one  man  can  be  recon- 
ciled with  the  personal  wishes  of  another  man,  in 
accordance  with  a  general  law  of  freedom."2  But 
while  this  definition  exhibits  a  profound  insight  into 
the  purpose,  or  function,  of  law,  it  is  otherwise  vague 
and  indefinite.  What  is  the  nature  of  the  "con- 
ditions' '  here  intended  ?  Are  they  found  in  the  nature 
of  men  and  things,  or  imposed  by  some  external 
human  authority,  and  if  the  latter,  by  what  author- 
ity? Savigny,  the  most  accomplished  philosophical 
jurist  of  his  time,  at  once  profound  and  practical,  de- 
scribes the  law  as  "The  rule  whereby  the  invisible 

»  Eccl.  Pol.,  i.  c.  3,  c.  8. 

2  Rechtslehre,  Werke,  vii.,  p.  27. 


6  Law,  Its  Origin 

border  line  is  fixed  within  which  the  being  and  the 
activity  of  each  individual  obtains  a  secure  and 
free  space."1  This  language,  however  vague  and 
obscure,  describes  law,  or  rather  its  function  quite 
accurately,  but  it  does  not  inform  us  of  the  origin 
of  the  rule,  or  the  nature  of  its  authority,  matters 
quite  necessary  to  a  complete  description. 

These  instances  are  not  given  by  Prof.  Holland  as 
attempted  definitions  of  any  law  actually  admin- 
istered; but  of  that  general  body  of  rules  to  which 
it  is  supposed  that  human  conduct  ought  to  conform, 
even  though  not  enforced  by  the  direct  action  of  the 
State, — rules  derived  from  what  is  called  the  Law  of 
Nature,  or  from  the  general  code  of  morality.  He 
is  a  follower  of  the  celebrated  John  Austin,  and 
would  restrict  the  name  of  Law  to  those  rules  which 
a  fully  organised  State  recognises  and  enforces,  and 
which  he,  adopting  the  language  of  Mr.  Austin,  dis- 
tinguishes by  the  term  Positive  Law.  He  cites  many 
instances  of  what,  in  his  view,  are  attempted  defini- 
tions of  this  law,  besides  giving  his  own.  Among 
them  is  that  of  Demosthenes:  "This  is  Law,  to 
which  all  men  should  yield  obedience  for  many 
reasons,  and  especially  because  every  law  is  a  dis- 
covery and  gift  of  God,  and  at  the  same  time  a 
decision  of  wise  men,  and  a  righting  of  transgressions, 
both  voluntary  and  involuntary,  and  the  common 
covenant  of  a  State,  in  accordance  with  which  it 
beseems  all  men  in  the  State  to  lead  their  lives." 
This  definition,  however,  seems  limited  to  those 
rules  which  are  formulated  by  learned  jurists  from 

1  Sy sterna  des  Reckts,  i.,  p.  332. 


Growth  and  Function  7 

the  precepts  of  morality,  and  scarcely  embrace  the 
edicts  of  a  tyrant,  or  the  arbitrary  enactments  of 
a  legislative  body  however  rigorously  they  may  be 
enforced.  Another  is  that  of  Xenophon : ' '  Whatsoever 
the  ruling  part  of  the  State,  after  deliberating  as  to 
what  ought  to  be  done,  shall  enact,  is  called  a  law." 
This  defines  well  enough  written  or  statutory  law, 
but  no  other.  Another  is  that  of  Hobbes,  the  cham- 
pion of  arbitrary  power,  which  also  defines  nothing  but 
statutory  law:  "The  speech  of  him  who  by  right 
commands  something  to  be  done  or  omitted." 
Another  is  that  of  Bentham,  who  believed  that  legis- 
lation should  embrace  the  whole  field  of  law:  "A 
portion  of  discourse  by  which  expression  is  given 
to  an  extensively  applying  and  permanently  en- 
during act  or  state  of  the  will,  of  a  person  or  persons 
in  relation  to  others,  in  relation  to  whom  he  is,  or 
they  are,  in  a  state  of  superiority."  It  requires  no 
small  amount  of  intellectual  effort  to  understand 
what  this  means,  but  it  is  phrased  with  studied  pre- 
cision to  express  what  the  author  thought  law 
ought  to  be.  John  Austin,  in  his  well-known  work 
on  The  Province  of  Jurisprudence  Determined,  limits 
that  province  to  what  he  designates  as  "Positive 
Law,"  which  he  defines  thus:  "Every  positive  law, 
or  every  law  simply  and  strictly  so  called,  is  set  by 
a  sovereign  person,  or  a  sovereign  body  of  persons, 
to  a  member  or  members  of  the  independent  political 
society  wherein  that  person  or  body  is  sovereign  or 
supreme,"1  and  he  denies  that  any  other  so-called 
laws  fall  within  the  scope  of  jurisprudence.  He, 

1  John  Austin,  lecture  vi.,  vol.  i.,  p.  116. 


8  Law,  Its  Origin 

like  Bentham,  whose  disciple  he  was,  thus  makes 
the  most  important  element  of  law,  its  authority, 
to  proceed  from  the  sovereign  power,  and  pro- 
nounces the  most  profound  judgment  of  an  Eldon 
or  a  Marshall  and  the  tyrannical  decree  of  the  most 
unscrupulous  despot  as  equally  entitled  to  the 
august  name  of  law.  And  yet  the  theory  of  Austin 
has  received,  both  in  England  and  America,  a  wider 
acceptance  and  adoption  among  juridical  writers 
than  any  other.  There  is  in  the  other  definitions  I 
have  referred  to  a  basis  of  general  truth,  however 
insufficient  they  may  be,  but  that  of  Austin  seems 
to  me  to  be  radically  and  mischievously  erroneous. 
This  will  clearly  appear  if  the  views  I  shall  hereafter 
endeavour  to  maintain  be  at  all  well  founded.  The 
definition  of  a  German  jurist,  Dernberg,  is  very 
concise.  It  is:  "That  ordering  of  the  relations  of 
life  which  is  upheld  by  the  general  will."  We  would 
scarcely  think  that  this  writer  was  speaking  of  the 
same  thing  which  Bentham  and  Austin  sought  to 
define.  Austin,  however,  could  cite  Blackstone  in 
his  favour,  whose  definition  is:  "A  rule  of  civil  con- 
duct prescribed  by  the  supreme  power  in  a  State 
commanding  what  is  right  and  prohibiting  what  is 
wrong"  ;  but  this,  besides  being  open  to  much  the 
same  criticism  as  the  definitions  of  Bentham  and 
Austin,  is  subject  to  another,  namely,  that  we  are 
not  told  where  we  are  to  find  the  "right"  and  the 
"wrong"  which  the  law  enjoins  or  prohibits,  except 
in  the  injunction  or  prohibition  itself.  Prof. 
Holland's  own  definition  is,  I  think,  while  far  from 
being  perfect,  one  of  the  best:  "A  law,  in  the  proper 


Growth  and  Function  9 

sense  of  the  term,  is  a  general  rule  of  human  action, 
taking  cognisance  only  of  external  acts,  enforced  by 
a  determinate  authority,  which  authority  is  human, 
and,  among  human  authorities,  is  that  which  is  para- 
mount in  a  political  society." 

Sir  Frederick  Pollock,  to  whose  disciplined  mind 
and  wide  learning  we  might  look  with  confidence  for 
a  satisfying  definition,  thinks  one  impossible  at 
present,  and  says:  "No  tolerably  prepared  candidate 
in  an  English  or  American  law  school  will  hesitate 
to  define  an  estate  in  fee  simple;  on  the  other  hand, 
the  greater  a  lawyer's  opportunities  of  knowledge 
have  been,  and  the  more  time  he  has  given  to  the 
study  of  legal  principles,  the  greater  will  be  his 
hesitation  in  face  of  the  apparently  simple  question, 
What  is  Law?" 

In  this  diversity  of  view  two  opposing  tendencies 
are  discernible.  One  of  them  may  be  described 
generally  as  an  ideal  tendency  seeking  to  enthrone 
over  human  affairs  a  rule  of  absolute  Right. 

The  ancient  jurists,  the  administrators  and  stu- 
dents of  the  law,  recognised  the  sense  of  justice  or 
right  felt  by  all  races  and  classes  of  men,  and  per- 
ceived that  there  were  rules  of  human  conduct  con- 
stituting a  rational  system  the  enforcement  of 
which  satisfied  this  universal  sentiment.  Whence 
the  sentiment  came,  or  the  rational  precepts  which 
accorded  with  it,  they  did  not  diligently  inquire,  but 
they  perceived  that  a  like  order  pervaded  all  the 
phenomena  of  the  moral  and  physical  world,  that 
the  heavenly  bodies  moved  and  the  seasons  suc- 
ceeded each  other  in  accordance  with  some  un- 


io  Law,  Its  Origin 

yielding  law,  and  that,  in  general,  virtue  was  rewarded 
and  vice  punished,  in  accordance  with  some  law 
equally  imperative.  They  could  not  help  believing 
that  the  universe,  moral  as  well  as  material,  was 
under  the  guidance  of  some  All-powerful  Mind,  the 
Creator  and  Ruler  of  all,  whom,  expressing  their 
ignorance  rather  than  their  knowledge  they  named 
indifferently  Jove,  God,  or  Nature.  Their  conclusion 
was  that  there  was  a  real  and  true  Law  towards 
which  all  human  law  approached,  and  good  men 
everywhere  aspired,  capable,  in  part  at  least,  of  be- 
ing apprehended  by  our  reason,  which  was  a  part 
of  universal  Nature,  and  an  emanation  of  the  Divine 
Mind,  and  to  this  they  gave  the  name  of  the  Law 
of  Nature. 

This  conception  fell  in  with  the  philosophical  tenets 
of  Stoicism,  which  was  the  school  in  which  the  Roman 
jurists  were  chiefly  trained.  It  furnished  a  founda- 
tion for  the  jus  gentium,  a  body  of  law  which  grew 
out  of  the  necessities  of  justice  in  dealing  with  the 
relations  between  citizens  of  Rome  and  the  people 
of  her  conquered  provinces;  and  it  thus  found  a 
place  in  the  Roman  Jurisprudence,  and  has  been 
carried  with  it  into  the  judicial  literature  of  the 
modern  nations  of  continental  Europe  which  have 
adopted  that  system  as  the  basis  of  their  law.  It 
was  a  favourite  theme  with  Cicero  in  his  legal  writ- 
ings, and  he  kindles  into  eloquence  whenever  he 
touches  upon  it.  His  nobly  phrased  panegyrics  have 
often  been  quoted. 

Nor  is  this  law  of  nature  a  stranger  to  the  jurid- 
ical writers  of  England.  I  might  refer  to  many 


Growth  and  Function  n 

who  recognise  it,  although  all  may  not  understand 
it  alike.  I  content  myself  with  a  citation  from 
Blackstone.  He  says:  "This  law  of  nature  being 
co-eval  with  mankind,  and  dictated  by  God  himself, 
is,  of  course,  superior  in  obligation  to  any  other. 
It  is  binding  over  all  the  globe  in  all  countries,  and 
at  all  times;  no  human  laws  are  of  any  validity  if 
contrary  to  this;  and  such  of  them  as  are  valid 
derive  all  their  force,  and  all  their  authority,  medi- 
ately or  immediately,  from  this  original."1 

This  lofty  conception  of  law  can  scarcely  be 
regarded  as  scientific.  If  there  were  no  other  ob- 
jection to  it,  it  would  be  enough  that  we  know  of  no 
certain  means  whereby  we  can  pronounce  what  the 
law  of  nature  is.  Blackstone,  indeed,  says  that  it 
may  be  reduced  to  one  "paternal  precept,  'that  man 
should  pursue  his  own  true  and  substantial  happi- 
ness. '" 2  And  while  he  thinks  the  task  would  be 
"pleasant  and  easy"  if  our  reason  were  "as  in  our 
first  ancestor  before  his  transgression,"  he  admits 
that  in  our  present  state  it  is  encumbered  with 
difficulties,  except  where  Divine  Providence  "hath 
been  pleased  at  sundry  times  and  in  divers  manners, 
to  discover  and  enforce  its  laws  by  an  immediate 
and  direct  revelation." 3  But  the  difficulty  of  gain- 
ing any  true  knowledge  of  it  is  quite  insuperable. 
The  law  of  God  must  be  absolute  like  himself,  and 
before  we  can  know  his  laws  we  must  be  absolute — 
that  is,  equal  with  him.  We  can  know  the  absolute 
in  no  direction,  and  science  could  scarcely  find  in 

1  Blackstone,  book  i.,  p.  41. 
>  Ibid,  »  Ibid. 


12  Law,  Its  Origin 

the  Sacred  Scriptures  rules  of  conduct  which  it  was 
the  duty  of  the  State  to  enforce. 

The  other  tendency  in  these  diverse  definitions 
is  the  one  represented  by  that  of  Austin.  Others, 
like  him,  impressed  with  the  uncertainty  which 
marks  what  is  called  the  Law  of  Nature,  and  dis- 
satisfied with  the  rhetorical  language  in  which  the 
vague  conceptions  of  it  are  clothed,  go  to  the  oppo- 
site extreme  and  refuse  the  name  of  law  to  every- 
thing which  is  not  prescribed  in  definite  language  by 
the  sovereign  power  of  the  State.  With  these 
everything  which  the  so-called  supreme  power  of 
the  State  commands,  whatever  its  character  in  point 
of  right,  is  law,  and  nothing  else  is  entitled  to  that 
designation.  And  thus  while  the  one  tendency 
would  enthrone  Right,  the  other  would  erect  Force, 
as  the  arbiter  of  human  conduct. 

The  inquiry  naturally  arises  whence  this  vague- 
ness, confusion,  uncertainty,  and  error  concerning 
subjects  which  have  engaged  the  attention  of  the 
most  powerful  minds  from  Aristotle  to  Bacon,  pro- 
ceeds. Is  the  law  incapable  of  definition?  If  so,  it 
must  be  for  the  reason  that  it  can  not  be  known,  or 
is  not  known ;  for  whatever  is  known  can  be  defined 
Or  do  the  confusion  and  contradiction  spring  from 
the  fact  that  truth  has  not  been  reached  for  the 
reason  that  the  proper  methods  of  investigation  have 
not  been  adopted?  In  all  the  physical  sciences  it 
has  long  been  recognised  that  little  can  be  gained  by 
indulging  in  hypotheses  and  conjectures,  and  that 
the  true  method  of  inquiry  is  to  fix  the  attention 
upon  the  field  of  actual  phenomena  to  which  the 


Growth  and  Function  13 

inquiry  relates,  and  arrange  our  knowledge  of  the 
facts  according  to  the  order  in  which  they  stand 
related  to  one  another.  Science  deals  with  facts 
alone,  and  where  there  are  no  facts  there  can  be  no 
science;  and  where  there  are  facts  no  progress  will 
be  made  in  erecting  a  science  which  shall  embrace 
them  until  these  facts  have  been  diligently  studied.1 
The  two  diverging  tendencies  to  which  I  have 
alluded  seem  to  me  to  have  arisen  from  a  failure  to 
recognise  these  truths.  In  viewing  the  law  as  a  body 
of  rules  proceeding  from  a  supposed  Law  of  Nature 
— an  invisible  fountain  of  right — we  are  simply 
indulging  in  hypothesis.  No  such  thing  is  open  to 
our  observation,  and,  consequently,  not  to  our 
knowledge.  So,  too,  when  we  ascribe  all  law  to  the 
command  of  the  supreme  power  in  a  State  we  are 
simply  contenting  ourselves  with  an  assumption. 
That  extremely  small  part,  comparatively,  of  the 
law  consisting  of  statutory  enactments  may  be  thus 
defined  with  some  approach  to  truth,  but  the  great 
bulk  of  the  law,  that  which  is  unwritten,  does  not 

i  NOTE. — Since  writing  the  above  some  observations  of  Prof.  Maine, 
of  a  similar  nature,  have  been  brought  to  my  attention.  He  says: 
"There  is  such  a  wide-spread  dissatisfaction  with  existing  theories 
of  jurisprudence,  and  so  general  a  conviction  that  they  do  not  really 
solve  the  questions  they  pretend  to  dispose  of,  as  to  justify  the  con- 
viction that  some  line  of  inquiry  necessary  to  a  perfect  result  has  been 
incompletely  followed  or  altogether  omitted  by  their  authors.  And 
indeed  there  is  one  remarkable  omission  with  which  all  these  specu- 
lations are  chargeable,  except  perhaps  those  of  Montesquieu:  They 
take  no  account  of  what  law  has  actually  been  at  epochs  remote  from 
the  particular  period  at  which  they  made  their  appearance."  (Early 
Law,  p.  174.) 

It  is  to  be  regretted  that  Prof.  Maine  did  not  devote  himself  to  a 
systematic  and  sustained  inquiry  throughout  the  promising  field  here 
suggested  instead  of  accepting  the  hypothetical  conclusions  of  Austin. 


14  Law,  Its  Origin 

appear  to  fall  under  the  definition.  This  is  conceded 
by  Austin,  and  his  mode  of  meeting  the  difficulty 
is  the  short  and  easy  one  of  assuming  that  the 
Sovereign  adopts  the  unwritten  law  as  it  is  declared 
by  the  courts,  an  assumption  not  only  unproved, 
but  unprovable.  It  is  a  pure  hypothesis. 

I  know  of  no  difference  between  the  physical 
and  the  moral  sciences  so  far  as  their  methods 
are  concerned.  In  the  one  as  well  as  in  the  other 
there  must  be  a  field  of  actual  and  observable 
fact,  and  wherever  there  is  such  a  field  a  science 
is  possible.  Where  there  is  none,  there  can  be 
no  observation,  and  therefore  no  science.  The 
world  of  fact  open  to  our  observation  is  not,  in- 
deed, limited  to  the  external  and  material  world; 
our  own  thoughts  and  feelings  are  equally  matters 
of  fact  made  known  to  us  by  consciousness,  and 
therefore  parts,  or  susceptible  of  being  made  parts, 
of  our  scientific  knowledge. 

My  first  endeavour  in  these  lectures  will  be  to 
find  an  answer  to  the  question  which  has  evoked 
so  many  different  opinions,  and  which  Sir  Frederick 
Pollock  deems  it  impossible  at  present  to  answer — 
What  is  Law? 

There  is  certainly  a  region  of  fact  with  which  the 
law  is  concerned.  The  common  description  of  law 
upon  which  all  are  agreed  is  that  it  is  "  a  body  of  rules 
for  the  regulation  of  human  .conduct,"  and  whether 
we  look  to  the  exercise  of  the  power  of  legislation,  or  to 
the  action  of  judicial  tribunals,  we  find  that  in  every 
instance  the  thing,  and  the  only  thing,  sought  to  be 
affected  by  law  is  human  conduct.  Of  course  in 


Growth  and   Function  15 

connection  with  human  conduct  everything  which 
directly  bears  upon  it,  including  especially  the 
nature  and  constitution  of  man,  and  the  environ- 
ment in  which  he  is  placed,  becomes  part  of  the 
field  of  fact  to  be  studied,  for  these  are  causes  con- 
stantly operating  upon  conduct  and  affecting  it. 
Human  conduct,  therefore,  with  everything  bearing 
upon  and  restraining  it,  constitutes  the  arena  of 
fact  which  the  student  seeking  for  a  knowledge  of 
the  true  nature  of  law  must  explore,  and  an  atten- 
tive survey  of  this  field,  and  a  just  arrangement  of 
its  contents  can,  I  think,  scarcely  fail  to  clear  up 
much  of  the  confusion  and  uncertainty  which  now 
obscure  our  conceptions  of  the  origin,  nature,  and 
function  of  the  law.  It  may  possibly  be  found  that 
human  conduct  is  in  a  very  large  degree  self -regu- 
lating, and  that  the  extent  to  which  it  can  be 
affected  by  the  conscious  interference  of  man  is 
much  narrower  than  is  commonly  supposed. 

Inasmuch  as  the  whole  field  of  human  conduct  is 
to  be  explored,  we  should  naturally  begin  with  the 
earliest  exhibitions  of  it  to  which  our  knowledge 
extends — that  is,  to  conduct  and  its  regulation  in 
primitive  society.  There  is  another  reason  for  turn- 
ing our  attention  at  first  to  primitive  society.  We 
can  more  easily  learn  the  real  nature  and  function 
of  any  complex  instrumentality,  whether  it  be  a 
piece  of  mechanism  like  the  steam-engine,  or  an 
institution  like  the  law,  if  we  begin  by  studying  it 
in  its  original  and  simplest  form.  We  thus  per- 
ceive more  easily  what  is  essential,  and  the  numer- 
ous additions  or  modifications  necessary  to  adapt  it 


1 6  Law,  Its  Order 

to  varying  circumstances  do  not  confuse  us  or  divert 
the  attention. 

It  is  not,  indeed,  possible  for  us  to  gain  any  direct 
knowledge  of  the  social  condition  of  pre-historic 
man.  Our  earliest  records  carry  us  back  a  few 
thousand  years  only,  and  these  exhibit  man  at  a 
considerably  advanced  stage  of  progress.  We  do 
not  know  how  long  he  has  been  upon  the  earth; 
but  we  have  sufficient  reasons  for  the  belief  that  he 
has  been  here  for  a  period  measured  by  millions  of 
years.  What  progress  may  have  been  made  during 
that  period  prior  to  any  time  of  which  we  have  any 
knowledge,  we  can  not  know  with  certainty. 

There  are,  however,  numerous  tribes,  of  men  now 
living  who  are  nearly  destitute  of  arts  and  industry, 
who  do  not  cultivate  the  earth,  who  subsist  wholly 
upon  its  wild  products,  who  have  only  the  simplest 
implements  and  dress,  rudely  fashioned  from  wood, 
stone,  and  the  skins  of  beasts,  and  archaeology 
brings  to  our  knowledge  the  existence  of  implements 
of  similar  character  which  must  have  belonged  to 
men  living  in  geologic  periods  long  anterior  to  our 
own.  We  know,  moreover,  that  the  ancestors  in 
historic  times  of  the  civilised  races  now  upon  the 
earth  used  similar  implements  for  presumably  similar 
purposes.  We  are  safe,  therefore,  in  the  conclusion 
that  the  social  conditions  open  to  our  observation 
of  barbaric  man  are  really  those,  or  resemble  those, 
of  primitive  or  pre-historic  man. 

The  tribes  of  men  lowest  in  the  scale  of  civilisa- 
tion of  which  we  have  any  knowledge  are  those 
which  subsist  upon  the  wild  fruits  or  products  of 


Growth  and  Function  17 

the  earth,  without  other  labour  than  that  required 
to  gather  or  capture  them.  They  are  huntsmen 
who  pursue  their  game  on  land  or  water  with  the 
rudest  implements  and  at  the  same  time  gather 
wild  honey,  yams,  cocoanuts,  or  other  wild  fruits. 
They  are  usually  more  or  less  unsettled,  wandering 
not  widely,  but  from  place  to  place,  as  the  needs  of 
their  existence  require.  Those  who  subsist  mainly 
by  the  pursuit  of  wild  animals  upon  the  land  roam 
through  limited  regions.  Those  who  live  upon  fish, 
or  where  wild  fruits  are  abundant,  are  more  settled. 
Of  these  are  the  inhabitants  of  Terra  del  Fuego,  the 
Patagonians,  some  tribes  of  Australia,  the  Bushmen 
of  South  Africa,  the  Wood  Veddahs  of  Ceylon,  the 
Andamanese  in  the  Bay  of  Bengal,  the  Abipones  of 
South  America.  They  may  dwell  in  caves  or  hollow 
"  trees,  or  in  the  rudest  huts  made  of  the  trunks  or 
branches  of  trees.  They  go,  in  some  instances,  naked, 
in  others  with  very  slight  clothing,  and  in  others, 
where  the  climate  is  severe,  they  are  more  com- 
pletely clothed  in  the  skins  of  beasts.  They  have 
no  arts  or  industries  save  such  as  are  necessary  for 
the  manufacture  of  their  weapons  or  the  construc- 
tion of  their  rude  habitations.  They  have  scarcely 
any  language.  The  relations  of  the  sexes  are  differ- 
ent in  different  tribes.  In  some  monogamy,  in 
others  polygamy,  and  in  others  promiscuity  obtains. 
These  societies  are  small  and  generally  inclined  to 
be  peaceful,  hostilities  with  neighbouring  tribes  being 
comparatively  rare.  They  are  usually  gentle  and 
kind  towards  each  other.  The  only  things  in  the 
nature  of  property  which  they  possess  are  their 


1 8  Law,  Its  Origin 

weapons  and  implements,  their  clothing  and  habita- 
tions, and  the  right  of  property  in  these  things  is 
recognised.  They  have  no  laws  or  organised  govern- 
ment. There  is  no  headship  in  the  tribe  except  on 
those  occasions  when  hostilities,  offensive  or  defen- 
sive, with  neighbouring  tribes  arise,  and  then  the 
most  capable  is  selected  as  chieftain  to  lead  the  rest. 
But  his  authority  declines  when  the  occasion  for  it 
has  passed.  There  is  no  council  of  elders  or  other 
body  clothed  with  public  authority.  All  the  members 
of  the  tribe  are  equal  and  independent. 

And  yet  in  these  societies  there  is  a  constant 
restraint  upon  conduct.  This  consists  simply  in  the 
obligation  felt  by  each  one  to  do  as  others  do — that 
is,  to  conform  to  custom.  Every  one  knows  that  if 
he  does  violence  to  another,  or  steals  his  property, 
he  will  excite  the  resentment  of  the  other,  and 
probably  receive  from  him,  and  those  who  will  aid 
him,  bodily  punishment.  He  will  provoke  retalia- 
tion. He  will  lose  the  approval  and  friendship  of 
his  fellow  tribesmen.  He  will  be  made  in  various 
ways  to  suffer.  These  are  the  consequences,  known 
beforehand,  of  a  failure  to  conform  to  custom,  and 
they  are  sufficient  to  secure  conformity,  not  indeed  in 
every  instance,  but  in  the  great  majority  of  instances. 
The  prime  requisite  of  human  society,  that  without 
which  it  cannot  subsist,  is  that  each  member  should 
know  what  to  expect  in  the  conduct  of  others,  and 
that  fair  expectations  should  not  be  disappointed. 
When  he  knows  this,  and  only  when  he  knows  it, 
he  knows  how  to  act  himself.  This  requirement  is 
supplied  by  conformity  to  custom.  The  obedience 


Growth  and  Function  19 

does  not  proceed  from  any  conception  of  a  principle 
of  right.  It  is  not  felt  to  be  a  crime  to  steal  the  prop- 
erty of  a  member  of  another  tribe,  or  to  do  violence 
to  his  person,  or  even  to  murder  him.  Such  acts 
indeed  are  often  regarded  as  virtues  and  applauded 
as  such.  The  custom  is  obeyed  unconsciously  in 
most  instances  because  there  is  no  temptation  to 
depart  from  it,  and  where  the  temptation  arises  self- 
restraint  is  exercised  through  fear  of  the  conse- 
quences. Custom,  therefore,  is  the  only  law  we 
discover  at  the  beginning  of  society,  or  of  society 
when  first  exposed  to  our  observation.  The  word 
itself  imports  its  main  characteristic,  namely,  its 
persistency  and  permanency. 

The  manner  in  which  a  compliance  with  such 
customs  is  enforced  is  shown  in  the  case  of  the 
Australian  tribes  above  referred  to.  We  are  told 
that  among  them  "the  holiest  duty  a  native  is  called 
upon  to  perform  is  that  of  avenging  the  death  of 
his  nearest  relative,  for  it  is  his  peculiar  duty  to  do 
so;  until  he  has  fulfilled  this  task  he  is  constantly 
taunted  by  the  old  women;  his  wives,  if  he  is  mar- 
ried, would  soon  quit  him;  if  he  is  unmarried,  not  a 
single  young  woman  would  speak  to  him;  his  mother 
would  constantly  cry,  and  lament  that  she  had  ever 
given  birth  to  so  degenerate  a  son;  his  father  would 
treat  him  with  contempt,  and  reproaches  would  con- 
stantly be  sounded  in  his  ear." 

It  is  important  to  observe  that  the  establishment 
of  a  custom  requires  time,  and  long  periods  of  time, 
and  as  all  conduct  is  preceded  by  thought,  it  also 
involves  a  long  series  of  similar  thoughts — that  is,  of 


20  Law,  Its  Origin 

long-concurring  common  opinion.  Custom  rests, 
therefore,  not  only  upon  the  opinion  of  the  present, 
but  upon  that  of  the  past;  it  is  tradition  passing 
from  one  generation  to  another.  We  know  no  primi- 
tive horde  even  without  this  inheritance,  and  this 
circumstance,  and  the  respect  and  veneration  for  an- 
cestors which  we  everywhere  find  in  primitive  peoples, 
contribute  to  make  custom  more  venerable  and  bind- 
ing. I  can  not  do  better  than  borrow  the  authority 
and  the  words  of  Mr.  Herbert  Spencer  in  describing  at 
once  the  existence  of  custom  among  primitive  tribes 
and  the  force  it  derives  from  its  transmission  from 
prior  generations  beyond  the  reach  of  observation. 

"  It  needs  but  to  remember  the  painful  initiation  which  at 
a  prescribed  age  each  member  of  a  tribe  undergoes  (submitting 
to  circumcision,  or  knocking  out  of  teeth,  or  gashing  of  the 
flesh,  or  tattooing) — it  needs  but  to  remember  that  from 
these  imperative  customs  there  is  no  escape;  to  see  that  the 
directive  force  which  exists  before  any  political  agency 
arises  and  which  afterwards  makes  the  political  agency  its 
organ,  is  the  gradually  formed  opinion  of  countless  preceding 
generations;  or  rather,  not  the  opinion,  which,  strictly 
speaking,  is  an  intellectual  product  wholly  impotent,  but  the 
emotion  associated  with  the  opinion.  This  we  everywhere 
find  to  be  at  the  outset  the  chief  controlling  power. 

"The  notion  of  the  Yukis  that  'if  they  departed  from  the 
customs  of  their  forefathers  they  should  be  destroyed'  may 
be  named  as  a  definite  manifestation  of  the  force  with  which 
this  transmitted  opinion  acts.  In  one  of  the  rudest  tribes  of 
the  Indian  hills,  the  Puans,  less  clothed  than  even  Adam 
and  Eve  are  said  to  have  been,  the  women  long  adhered  to 
their  bunches  of  leaves  in  the  belief  that  change  was  wrong. 
Of  the  Korana  Hottentots  we  read  that  'when  ancient  usages 
are  not  in  the  way  every  man  seems  to  act  as  is  right  in  his 
own  eyes.'  Though  the  Damara  chiefs  'have  the  power  of 


Growth  and  Function  21 

governing  arbitrarily,  yet  they  venerate  the  traditions  and  cus- 
toms of  their  ancestors.'  Smith  says:  'Laws  the  Araucanians 
can  scarcely  be  said  to  have,  though  there  are  many  ancient 
usages  which  they  hold  sacred  and  strictly  observe. '  Accord- 
ing to  Brooke,  among  the  Dyaks  custom  simply  'seems  to 
have  become  law,  and  breaking  the  custom  leads  to  a  fine.' 
In  the  minds  of  some  clans  of  the  Malagasy  'innovation  and 
injury  are  .  .  .  inseparable,  and  the  idea  of  improve- 
ment altogether  inadmissible.' 

"This  control  by  inherited  usage  is  not  simply  as  strong 
in  groups  of  men  who  are  politically  unorganised,  or  but 
little  organised,  as  it  is  in  advanced  tribes  and  nations,  but  it 
is  stronger.  As  Sir  John  Lubbock  remarks:  'No  savage  is 
free.  All  over  the  world  his  daily  life  is  regulated  by  a  com- 
plicated and  apparently  most  inconvenient  set  of  customs 
(as  forcible  as  laws),  of  quaint  prohibitions  and  privileges.' 
Though  one  of  these  rude  societies  appears  structureless,  yet 
its  ideas  and  usages  form  a  kind  of  invisible  framework  for  it, 
serving  rigorously  to  restrain  certain  classes  of  its  actions. 
And  this  invisible  framework  has  been  slowly  and  uncon- 
sciously shaped  during  daily  activities,  impelled  by  prevailing 
feelings,  and  guided  by  prevailing  thoughts,  through  genera- 
tions stretching  back  into  the  far  past. 

"In  brief  then,  before  any  definite  agency  for  social  control 
is  developed,  there  exists  a  control  arising  partly  from  the 
public  opinion  of  the  living,  and  more  largely  from  the  public 
opinion  of  the  dead." 

Let  us  next  glance  at  the  conduct  of  man  at  a 
slightly  advanced  stage  of  progress,  namely,  the 
pastoral  state,  in  which  he  seeks  his  subsistence 
from  herds  of  tamed  animals,  and  must,  therefore, 
roam  with  them  wherever  food  for  them  is  to  be 
found.  Unlike  the  primitive  savage,  instead  of 
killing  whatever  animals  he  captures  and  consum- 
ing them  in  immediate  enjoyment,  he  tames  them 


22  Law,   Its  Origin 

and  takes  only  their  increase;  he  practises  absti- 
nence, and  endures  labour  in  the  hope  of  a  greater 
happiness  in  the  future.  It  is  in  this  more  than  in 
anything  else  that  we  find  the  promise  of  progress 
and  civilisation;  for  whenever  man  has  learned  to 
postpone  present  enjoyment  to  a  future  good  he  has 
taken  the  first  step  in  individual  and  social  progres- 
sion. But  the  life  of  the  shepherd  is  still  a  wandering 
one.  The  communities  are  small,  and  present,  in 
general,  so  far  as  the  government  of  conduct  is  con- 
cerned, no  features  essentially  different  from  those 
of  the  other  less  wandering  tribes.  The  persistency 
of  custom  and  its  dependence  upon  environment 
may  be  well  illustrated  by  a  reference  to  one  of  these 
societies.  The  Bedouins  of  the  Arabian  desert, 
although  the  individuals  have  greatly  advanced  in 
consequence  of  contact  with  civilised  peoples,  still 
exhibit  collectively  the  manners  and  customs  which 
distinguished  them  three  thousand  years  ago. 

The  chief  characteristic  which  marks  the  next 
stage  in  social  advancement  is  the  adoption,  wholly 
or  partly,  of  permanent  abodes  in  place  of  a  wander- 
ing life,  and  with  it,  necessarily,  the  cultivation  of 
the  earth.  The  numbers  grouped  together  now 
become  larger,  but  the  increase  is  brought  about  in 
two  different  methods,  and  they  present  one  of  two 
widely  different  aspects  according  as  the  tendencies 
are  to  a  militant  or  to  a  peaceful  life.  If  the  society 
has  the  former  tendency,  it  increases  by  the  con- 
quest of  neighbouring  tribes  and  consolidating  them 
with  itself;  if  the  latter,  the  increase  is  manifested 
by  the  natural  increase  of  its  own  population  largely 


Growth  and  Function  23 

accelerated  by  the  diminution  in  hardships  which 
follows  from  its  abandonment  of  the  wandering  life 
and  by  the  increased  care  of  children. 

Confining  our  attention  first  to  the  warlike 
societies,  we  find  that  they  exhibit  what  the  primi- 
tive groups  first  noticed  lack — some  organisation  of 
the  State.  In  war  there  must  be  a  leader,  and  abso- 
lute power  must  be  reposed  in  him  in  order  that 
war  may  be  made  effective.  Internal  quarrels  in 
the  warrior  bands  must  also  be  repressed,  and  the 
power  bestowed  upon  the  chieftain  is  employed  for 
that  end.  The  most  skilful  warrior  acquires  this 
chieftaincy  and  it  becomes  paramount  in  him,  and 
develops  into  kingship.  This  power,  supported,  in 
peace  as  well  as  in  war,  by  bands  of  warriors,  be- 
comes absolute,  and  the  chieftain  is  able  to  choose 
his  successor.  He  naturally  chooses  his  son,  and 
thus  arises  the  tendency  to  hereditary  monarchy. 

In  order,  however,  that  the  king  may  maintain 
his  authority  over  the  tribes  he  has  conquered,  he 
selects  a  company  of  favourites  from  his  subordinate 
chiefs,  the  leaders  of  his  warrior  bands  and  the  heads 
of  the  conquered  tribes,  who  are  made  rulers  simi- 
larly absolute  over  such  tribes,  though  subject  to 
him,  and  through  these  tributes  are  exacted  and 
levies  of  warriors  made  from  the  local  populations. 
The  land  is  everywhere  distributed  among  those 
who  have  distinguished  themselves  in  battle,  or 
otherwise  secured  royal  favour.  Prisoners  taken  in 
war  are  made  slaves  to  cultivate  the  land,  and 
thus  classes  are  created  in  the  State,  all  except 
the  slaves  enjoying  privileges  over  those  beneath 


24  Law,  Its  Origin 

them,  and  dependent  for  the  enjoyment  of  such 
privileges  upon  the  favour  of  the  sovereign;  and 
thus  the  kingdom  becomes  consolidated  into  a 
powerful  tyranny.  The  African  kingdoms  of  Da- 
homey and  Ashantee  are  typical  instances  of  such 
societies. 

How  is  conduct  regulated  in  such  groups  ?  We  do 
not  find  any  legislative  bodies  organised  to  enact 
laws,  nor  does  the  sovereign  either  by  himself  or 
through  ministers  declare  any  designed  to  affect  the 
ordinary  life  of  the  people.  The  different  tribes  of 
the  kingdom  already,  when  conquered,  had  their 
customs,  as  we  have  seen,  the  silent  growth  of 
long  periods  of  time,  and  these  continue  as  before 
with  all  their  sanctions.  The  tyrant  could  not 
change  them,  with  all  his  power,  even  if  he  would, 
for,  as  we  have  seen,  they  are  unchangeable  except 
in  the  ways  by  which  they  were  formed;  but  he 
does  not  wish  to  change  them.  All  tyrants  are 
unqualified  advocates  of  the  maintenance  of  things 
as  they  are.  These  barbarous  sovereigns,  indeed, 
are  personally  above  the  customs,  and  plunder,  rob, 
and  murder  at  their  will.  Their  tyrannical  authority 
is  sustained  by  favour  and  fear,  but  public  peace 
and  order  beneath  them  it  is  their  interest  to  pro- 
mote. The  ancient  customs  are  supported  by  the 
ancient  sanctions,  except  in  the  case  of  slaves  who 
are  left  at  the  mercy  of  their  masters.  There  is 
indeed  an  additional  sanction.  The  State  is  or- 
ganised, although  rudely.  It  has  a  political  form; 
the  sovereign  and  his  subordinate  chiefs  are  clothed 
with  power  in  the  bands  of  warriors  whom  they 


Growth  and  Function  25 

command,  and  the  weak,  when  injured,  appeal  to 
them,  and  they  enforce  redress.  Violations  of  cus- 
tom are  punished  by  the  public  authority,  and  thus 
a  beginning  is  effected  in  the  public  redress  of 
private  injuries;  in  other  words,  what  we  know  as 
the  public  administration  of  justice  begins,  although 
in  a  very  crude  form.  But  whether  an  act  is  a 
public  crime,  or  a  private  injury,  depends  as  before 
upon  its  conformity,  or  nonconformity,  to  custom. 
The  advance,  for  such  we  must  regard  it,  furnished 
by  this  new  sanction  of  custom,  is  one  of  the  results 
of  the  integration  of  small  primitive  tribes  or  hordes 
into  a  larger  society,  and,  though  effected  by  war 
and  violence,  is  in  itself  beneficent.  If  we  are  to 
have  absolute  tyrannies,  it  is  well  when  a  number 
are  swallowed  up  in  one. 


LECTURE  II 

URNING  now  to  the  other  division  of  early  socie- 
ties first  exhibiting  the  beginnings  of  political  or- 
ganisation, namely,  those  characterised  by  peaceful 
dispositions,  and  which  extend  themselves,  not  by  the 
conquest  of  adjacent  tribes  and  their  territories,  we 
find,  although  not  universally,  tendencies  towards 
democratic  instead  of  monarchical  organisation. 
This  consists  usually  in  the  establishment  of  a  coun- 
cil composed  of  elders  of  superior  wisdom  and 
moderation  in  which  the  public  authority  is  lodged. 
We  find  examples  of  such  societies  among  the  bar- 
barous tribes  of  Germany  in  early  ages.  Although 
nearly  all  these  tribes  possessed  warlike  qualities 
which  made  them  formidable  in  battle,  they  did 
not  engage  in  war  generally  for  the  sake  of  extending 
their  own  sway  by  the  conquest  of  the  territory  of 
adjacent  tribes,  but  for  plunder,  or  retaliation,  or 
glory,  and  some  of  them  were  naturally  inclined  to 
peace,  not  taking  up  arms  except  in  defence  against 
hostile  attack.  Other  instances  of  substantially 
similar  societies  are  found  among  the  islanders 
of  the  Pacific,  such  as  the  Tahitans,  the  Tongas, 
the  Samoans,  and  the  inhabitants  of  the  Sand- 
wich Islands,  although  the  external  conditions  are 
different. 

26 


Law:  Origin,  Growth  and  Function      27 

The  characteristics  of  these  tribes  are,  in  general, 
an  increasing  scarcity  of  wild  game,  the  possession 
of  a  fruitful  soil,  yielding  a  large  product  for  moderate 
labour,  some  increase  in  the  density  of  the  popula- 
tion and  consequently  some  advance  in  co-operation 
by  means  of  a  division  of  employments  and  exchange 
of  services.  These  conditions  greatly  enlarge  the 
intercourse  between  individuals  and  multiply  their 
relations  with  each  other.  The  necessity  thus  arises 
for  a  more  extended  regulation  of  conduct.  We  do 
not,  however,  find  that  any  new  instrumentality  is 
employed.  No  laws  are  made  by  the  kings,  or  the 
local  chiefs  acting  under  their  authority,  or  by 
councils  composed  of  chiefs  or  elders.  This  cannot 
be  wholly  in  consequence  of  ignorance  of  the  art  of 
writing,  for  laws  orally  promulgated  may  be  enforced 
and  may  be  perpetuated  by  tradition.  The  only 
way  in  which  conduct  is  regulated  at  this  stage  is, 
as  before,  by  custom.  The  change  from  the  sparse 
numbers  of  primeval  tribes  living  upon  the  natural 
fruits  and  products  of  the  earth  has  been  very  slow 
and  gradual,  and  as  the  changes  occur  new  customs 
grow  up  to  answer  the  new  needs,  but  custom  is  still 
the  only  law.  There  is  less  and  less  resort  to  forceful 
and  violent  redress  of  injuries  and  more  and  more  of 
appeal  to  public  authority  for  justice.  This  justice 
is  administered  by  various  persons  or  bodies;  some- 
times by  the  King,  sometimes  by  his  officers  sur- 
rounding him,  sometimes  by  local  chiefs,  who  have 
the  government  of  districts,  sometimes  by  a  council 
of  chiefs  or  elders.  But  in  such  cases  they  act 
judicially;  the  rights  they  enforce  and  the  wrongs 


28  Law,  Its  Origin 

they  redress  are  such  as  derive  their  character  as 
rights  or  wrongs  from  the  existing  customs.  There 
is  now  what  did  not  exist  in  the  wandering  horde,  a 
society  more  or  less  efficiently  organised,  and  a 
public  administration,  however  imperfect,  of  justice 
or  rather  something  which  points  towards,  and  may 
eventually  become,  an  administration  of  justice. 
These  conditions  have  subsisted  in  many  parts  of 
the  earth  from  our  first  acquaintance  with  them 
down  to  the  present  time.  This  earliest  assumption 
of  functions  in  their  nature  judicial  by  the  chiefs 
or  councils,  in  societies  which  have  become  some- 
what settled  and  organised,  does  not,  at  once,  super- 
sede the  other  agencies  by  which  violence  and  dis- 
order were  previously  repressed,  such  as  private 
vengeance,  the  unfriendly  opinion  of  tribesmen,  or 
the  superstitious  fear  of  evil  coming  from  the  ghosts 
or  spirits  of  the  departed,  but  it  reinforces  those 
agencies.  Their  united  power  in  restraining  con- 
duct is  often  very  great.  Tacitus  says,  speaking  of 
the  German  tribes,  that  their  good  customs  were  of 
greater  power  than  the  good  laws  of  other  people. 
"Plusque  ibi  boni  mores  valent  quam  alibi  bones 
leges." 

Nor  is  there  as  yet  any  conception  of  justice 
other  than  as  of  an  obligation  to  obey  the  injunction 
of  custom  and  tradition  which  in  most,  if  not  in  all. 
tribes  is  assumed  to  be  imposed  by  some  great  ances- 
tor or  ancestors,  or  other  disembodied  spirits,  exer- 
cising from  an  unseen  world  their  authority  over 
mundane  affairs.  The  profoundest  enquirers  into 
the  internal  factors  which  make  up  the  primitive 


Growth  and  Function  29 

man  everywhere  find  a  belief  in  the  existence  of  a 
world  other  than  the  visible  one,  inhabited  by  gods 
and  demigods,  and  by  the  spirits  of  man's  own  an- 
cestors as  well — beings  who  hold  and  exercise  a  mys- 
terious power  over  the  lives  and  fortunes  of  the  living. 
Offences  against  the  customs  and  usages  are  offences 
against  them,  and  from  them  proceed  the  commands 
to  obedience.  The  interpreters  of  this  Divine  Will, 
sometimes  under  despotic  rulers,  were  the  king  and 
the  priesthood;  in  more  democratic  societies,  the 
elders  or  wise  men,  together  with  the  priesthood. 
This  spiritual  power  is  wielded  by  those  who  come 
to  be  regarded  as  in  communication  with  the  unseen 
world,  and  thus  constitute  a  priesthood.  They  act 
in  alliance  with  the  public  authority,  and  afford 
powerful  assistance  in  the  maintenance  of  peace 
and  order. 

Another  feature,  characteristic  of  this  as  well  as 
of  all  the  preceding  social  stages,  while  it  operates 
in  some  ways  to  enlarge  violence  and  make  strife 
more  deadly,  yet  on  the  whole  restricts  it.  This  is 
the  family  tie.  The  family  appears  as  the  unit  of 
society.  Its  members  stand  by  each  other  in  all 
fortunes.  If  strife  breaks  out  between  some  indi- 
viduals of  the  family  itself,  the  others  compose  it; 
but  if  a  member  of  one  family  is  slain  by  the  member 
of  another,  or  otherwise  injured,  the  quarrel  is  taken 
up  by  the  respective  families,  irrespective  of  right 
or  wrong.  Retaliation  is  the  immediate  impulse; 
homicide  is  offset  by  homicide;  robbery  by  robbery; 
an  eye  for  an  eye  and  a  tooth  for  a  tooth  is  the 
maxim  of  action.  We  are  not  to  suppose  that  all 


30  Law,  Its  Origin 

the  members  of  a  family  welcomed  the  opportunity 
which  an  offence  given  by  one  of  its  number  afforded 
to  engage  in  strife  with  another  family.  On  the 
contrary,  these  quarrels  were  so  likely  to  result  in 
bloodshed  that  they  were  dreaded,  and  the  com- 
mission of  an  unprovoked  injury  which  would  com- 
pel the  kinsmen  of  the  guilty  person  to  risk  their 
lives  in  his  defence  was  an  injury  also  to  the  family 
to  which  he  belonged.  The  family  might  punish 
him  themselves,  or  even  abandon  him  for  punish- 
ment to  the  family  he  had  wronged. 

As  the  tribe  becomes  more  settled,  and  industrial 
pursuits  become  more  established,  bringing  with 
them  some  accumulations  of  property,  some  division 
of  labour,  some  trade  and  commerce,  and  conse- 
quently some  increased  complexity  in  social  life, 
the  necessity  for  increased  peace  and  order  becomes 
more  deeply  felt,  and  the  want  can  be  supplied  only 
by  the  adoption  of  some  more  peaceful  method  of 
redressing  grievances.  So  long  as  there  was  little 
or  no  property,  and  disputes  arose  more  from  mere 
passion  and  accompanying  violence,  the  intervention 
of  the  chieftain,  or  the  priesthood,  was  probably  the 
best  agency  for  bringing  about  peace 'and  order; 
but  on  the  springing  up  of  industry  with  its  ac- 
companying contractual  relations  and  accumulations 
of  property,  new  customs  arise,  and  with  them  more 
distinct  conceptions  of  what  is  due  to  one  from 
another  as  the  reward  of  service,  and  the  want 
necessarily  becomes  felt  of  some  more  intelligent 
and  just  decision  of  controversies.  When  men  enter 
into  contractual  relations  with  each  other,  expecta- 


Growth  and  Function  31 

lions  are  immediately  raised,  and  when  these  are 
disappointed  trouble  arises  until  some  satisfactory 
redress  is  afforded.  This  can  come  only  from  a 
decision  by  those  acquainted  with  the  grounds  of 
the  dispute  and  able  to  decide  it  in  such  way  as  to 
afford  reasonable  satisfaction;  in  other  words,  from 
a  decision  by  experts.  What  is  demanded  at  this 
stage  of  human  progress  is,  not  some  new  law,  for 
the  conception  even  of  legislation  does  not  as  yet 
exist,  but  some  properly  qualified  judge,  and  some 
method  of  compelling  the  appearance  of  an  adversary 
before  him — that  is  to  say,  a  method  of  procedure. 
An  existing  dispute  between  men  must,  of  necessity, 
consist  of  a  difference  of  opinion  concerning  the 
conduct  which  one  is  entitled  to  expect  from  the  other, 
and  the  expectation  of  either  party  can  be  justified 
only  by  an  appeal  to  what  he  supposes  to  be  the 
existing  rule  or  custom  applicable  to  the  case. 
Neither  party  will  assert  a  new  rule,  for  that  would, 
of  itself,  condemn  him.  Accordingly  we  find  that 
the  first  step  in  the  way  of  improving  the  adminis- 
tration of  justice  is  to  establish  a  tribunal  for  the 
sole  purpose  of  determining  controversies.  This  is 
the  beginning  of  Procedure,  and  procedure  pre- 
supposes an  already  existing  law,  or  something 
standing  in  the  place  of  law,  which  is  to  be  adminis- 
tered by  it. 

This  stage  of  society,  that  of  increasing  industry 
with  its  accompanying  trade  and  commerce,  is  also 
the  one  in  which  writing  becomes  necessary,  and  in 
which  it  is  first  found  to  be  employed.  Judicial 
tribunals  could  not,  indeed,  be  so  established  as 


32  Law,  Its  Origin 

to  effectively  answer  their  purpose  without  the  aid 
of  writing,  and  therefore  I  shall  roughly  regard  the 
creation  of  such  tribunals  as  nearly  contempora- 
neous with  the  introduction  of  the  use  of  writing, 
which,  I  believe,  will  be  found  upon  historic  inquiry 
to  be  probable. 

A  conjecture  of  Blackstone  is  not  unnatural  that 
the  dominance  of  custom  in  the  governing  of  con- 
duct at  the  period  under  consideration  may  be 
owing  to  the  fact  that  there  could  be  no  written 
law  until  the  art  of  writing  had  been  acquired,  and 
the  existence  of  some  very  ancient  codes,  like  the 
laws  of  Solon,  may  suggest  that  as  soon  as  men  had 
discovered  an  instrumentality  by  which  they  could 
frame  laws  they  employed  it  for  the  purpose  of 
providing  themselves  with  more  fixed  and  certain 
rules  of  conduct  than  mere  custom  could  supply. 
But  the  conjecture  seems  not  very  probable,  inas- 
much as  writing  is  supposed  to  have  been  known 
about  1500  B.  c. — many  centuries  prior  to  any 
authenticated  instance  of  its  use  in  the  making  of 
laws.  It  may,  however,  have  been  employed  for 
purposes  the  knowledge  of  which  has  not  come  down 
to  us;  but  the  important  question  is,  whether  it 
was  employed  for  the  purpose  of  supplanting  cus- 
tom. I  must  pause,  therefore,  to  scrutinise  the  ear- 
liest well-known  instances  in  which  writing  was 
employed  for  the  purposes  of  legislation,  with  the 
view  of  seeing  how  far,  if  at  all,  this  may  have  been 
the  object,  or  whether  custom  still  remained,  not- 
withstanding this  new  instrumentality,  the  only 
source  from  which  rules  of  conduct  could  be  de- 


Growth  and  Function  33 

rived.  We  may  feel  sure  that  if  writing  were  ever 
in  early  times  employed  to  supplant  custom,  that 
purpose  would  clearly  appear  in  the  most  ancient 
codes  of  which  we  have  any  knowledge. 

Omitting  any  reference  to  the  Code  of  Draco,  of 
which  we  know  little  or  nothing,  the  first  consider- 
able employment  of  writing  in  the  composition  of 
laws  was  in  Athens  by  Solon  some  time  about  the 
year  594  B.C.  For  a  long  period  prior  to  this,  Athens 
had  been  a  large  populous  State,  and  had  reached 
a  high  stage  of  civilisation.  Its  citizens  were  ex- 
tensively engaged  in  commerce  and  in  various  forms 
of  industry,  and  a  regular  government,  with  an 
archon,  or  archons,  for  chief  rulers,  had  existed  for 
several  centuries.  It  was  the  age  which  just  preceded 
the  most  glorious  period  of  Grecian  history,  the 
period  of  Thermopylae  and  Marathon.  Moreover, 
intellectual  cultivation  had  advanced  to  a  con- 
siderable elevation.  Thales  was  already  indulging 
those  philosophical  speculations  which  two  centu- 
ries later  were  carried  forward  with  a  power  and 
subtlety  never  since  surpassed,  by  Socrates,  Plato, 
and  Aristotle.  In  such  a  society,  with  such  pur- 
suits, the  law  of  contract  must  find  a  most  important 
place,  and  there  is  indeed  occasion  for  a  juristic 
system  approaching,  though  not  reaching,  in  extent 
and  refinement  that  which  we  find  in  the  advanced 
period  of  Roman  civilisation,  or  in  the  cultivated 
societies  of  modern  times. 

What,  then,  was  the  principal  motive  which  in- 
duced the  people  of  Athens,  under  the  guidance  of 
Solon,  to  seek  to  embody  their  will  in  written  lan- 

3 


34  Law,   Its  Origin 

guage  ?  Was  it  that  they  believed  that  a  law  existing 
only  in  the  public  consciousness  and  evidenced  only 
by  custom,  was  insufficient  for  the  ordinary  pur- 
poses of  civil  society  at  the  stage  which  society  had 
then  reached,  and  that  it  was  expedient  that  all 
their  customary  rules  of  a  juristic  nature  should  be 
reduced  to  written  formulas,  or  was  it  that  there 
were  special  exigencies  causing  disturbances  in 
society  and  bringing  customs  into  doubt  and  conflict, 
and  making  it  necessary,  in  some  measure,  to  recon- 
struct the  social  and  political  organism  on  some 
basis  of  reconciliation?  We  shall  find  that  the 
latter  of  these  two  questions  suggests  the  true  answer. 
Following  what  has  just  been  said  of  the  condition 
of  Athens  at  the  time,  we  may  add  the  observations 
of  an  intelligent  scholar  upon  the  same  points: 

"It  was  a  time  of  fermentation  in  society;  Psammetichos 
had  opened  the  Nile  region  to  the  Greeks  (B.  c.  666) ;  the  first 
money  had  been  coined  in  ^Egina ;  navigation  took  all  at  once 
a  gigantic  stride  forward;  young  adventurers  gained  in  a  few 
years  great  riches,  and  those  parts  of  the  communities  en- 
gaged in  trade  took  form  as  a  new  middle  class,  and  stood  defi- 
antly opposed  to  the  ancient  families;  property  in  land  was 
outstripped  by  movable  capital ;  around  Athens  on  all  sides — 
in  Argos,  Corinth,  Sicyon,  Megara — the  old  system  of  things 
had  been  broken,  the  ruling  families  had  been  overthrown, 
and  through  the  downfall  of  the  constitutions  single  tyrants 
had  come  to  power,  who  shone  by  their  riches,  employed  mer- 
cenary troops,  and  pursued  a  narrow  policy  of  self-aggrandise- 
ment. In  this  revolutionary  time,  spite  of  all  splendor,  the 
best  possessions  of  the  nation  were  endangered — namely,  the 
free  citizen  class  and  the  sovereign  authority  of  the  law." 1 

1  Ernst  Curtius,  in  Johnson's  Encyclopedia,  sub  verbo,  "  Solon." 


Growth  and  Function  35 

All  this  indicates  conflicts  of  custom  in  the  in- 
terior of  society,  a  destruction  of  that  concurrence 
of  public  sentiment  upon  which  the  stability  of 
custom  reposes,  and  a  social  conflict  which  could 
be  repressed  only  by  overwhelming  physical  force, 
or  by  a  reconciliation  based  upon  popular  assent. 

Passing  to  the  contents  of  the  legislation  of 
Solon,  this  view  of  the  condition  of  society  and  of 
the  purpose  of  the  new  laws  is  confirmed.  Solon 
played  the  part  of  mediator  between  the  contending 
parties.  He  lightened  the  burdens  of  the  debtor 
class,  enabling  the  poor  to  escape  from  the  grinding 
tyranny  of  their  creditors,  took  the  political  power 
from  the  ruling  families  which  had  theretofore  exer- 
cised it,  gave  all  citizens  a  share,  though  not  an 
equal  share,  in  the  enactment  of  laws,  redistributed 
the  burdens  of  taxation,  and  generally  gave  a  more 
democratic  form  to  the  political  constitution  of  the 
State.  All  this  imports  a  sudden  settlement  of  pre- 
existing conflicts  in  popular  customs,  and  one  which 
can  be  effected  in  two  ways  only,  either  by  over- 
powering force,  or  by  social  agreement,  and  in  the 
latter  case  written  law  seems  to  be  a  necessary 
instrumentality.  By  no  other  means  can  the  points 
agreed  upon  be  defined  by  a  permanent  memorial 
to  which  appeal  can  be  made  at  all  subsequent 
times. 

Turning  now  to  the  history  of  legislation  in 
ancient  Rome,  we  find  that  the  earliest  considerable 
employment  of  writing  was  in  the  enactment  of 
what  is  known  as  the  Twelve  Tables,  in  the  year 
451  B.C.,  the  302nd  year  of  the  foundation  of  the 


36  Law,  Its  Origin 

city.  The  condition  of  Rome  at  that  period  resem- 
bled in  many  particulars  that  of  Athens  at  the  time 
of  the  enactment  of  the  Code  of  Solon.  Rome  was 
a  large  and  populous  State  with  a  government  in 
many  respects  highly  organised.  It  had  a  population 
of  several  hundred  thousand,  a  large  commerce,  and 
a  consequent  minute  division  of  employments  and 
large  aggregations  of  wealth.  There  was  a  large  debtor 
class  which  shows  that  in  the  course  of  social  devel- 
opment the  stage  of  contract  had  long  been  reached. 
In  every  rude  society  from  the  first  beginnings,  the 
governing  power,  together  with  the  administration 
of  justice,  is  lodged  either  in  a  king  or  with  the  older 
and  more  prudent  members.  These,  as  society  ad- 
vances and  wealth  accumulates,  become  the  most 
wealthy,  and  the  powers  of  government,  including 
the  interpretation  and  enforcement  of  the  customs, 
are  naturally  wielded  more  or  less  in  favour  of  the 
interests  with  which  they  are  lodged.  It  was  so  in 
a  high  degree  in  Rome,  and  this  condition  had  been 
the  source  of  dissatisfaction  and  unrest  for  a  long 
time  prior  to  the  adoption  of  the  Twelve  Tables. 
The  royal  government,  which  under  seven  succes- 
sive kings  lasted  two  hundred  and  forty  years,  had 
been  overthrown  and  a  government  somewhat  re- 
publican in  form,  with  Consuls  as  the  chief  magis- 
trates, established  in  its  place.  The  Consuls  were, 
after  a  few  years,  displaced  by  a  Dictator,  and  his 
authority  was  soon  afterwards  transferred  to  a  body 
of  ten  called  Decemvirs.  The  people  were  divided 
into  two  principal  classes,  the  patricians  and  the 
plebeians,  and  the  constant  complaint  of  the  latter 


Growth  and  Function  37 

was  that  the  powers  of  government,  both  executive 
and  judicial,  being  lodged  with  the  patricians,  were 
exercised  in  favour  of  their  own  order  and  to  the 
oppression  of  the  plebeians.  The  latter  class  had 
become  so  powerful  and  its  frequent  rebellions  so 
dangerous  that  its  demands  could  no  longer  pass 
unheeded,  and  the  Decemvirs  were  charged  with  the 
duty  of  reorganising  the  political  government  and 
framing  such  laws  as  would  reconcile  the  conflicting 
elements  of  the  State.  They  were  engaged  in  this 
work  for  two  years,  in  the  course  of  which  they  sent 
a  commission  to  Athens  to  examine  the  govern- 
mental framework  and  the  laws  devised  by  Solon, 
and  their  work  in  the  form  of  Ten  Tables  was 
accepted,  and,  with  two  additional  ones,  subse- 
quently adopted,  remained,  professedly  at  least, 
the  basis  of  the  Roman  jurisprudence  until  the  age 
of  Justinian. 

The  use  of  writing  had,  we  may  safely  presume, 
been  carried  from  Greece  to  her  colonies  soon  after 
she  had  acquired  it,  and  would  thence  pass  easily 
to  Rome.  It  must  have  been  known  in  that  city 
for  centuries  before  the  Twelve  Tables,  and  there 
is  reason  to  believe  that  during  this  period  it  was 
occasionally  employed  in  the  enactment  of  some 
particular  laws,  but  the  Twelve  Tables  were  the 
first  instance  of  its  employment  upon  a  considerable 
scale. 

The  important  features  of  this  review  of  the  early 
legislation  of  Athens  and  Rome,  to  which  I  wish  to 
call  attention  are  these:  First,  that  a  high  degree 
of  social  advancement,  displaying  large  populations, 


38  Law,  Its  Origin 

division  of  employments,  development  of  industry 
and  commerce,  and  highly  organised  governments, 
was  reached  and  maintained  without  the  employ- 
ment of  written  laws ;  second,  that  the  chief  motive 
of  the  first  resort  to  such  law  was  internal  conflict 
among  the  different  elements  of  the  State  threaten- 
ing revolution,  a  conflict  which  could  not  be  ter- 
minated except  by  the  complete  subjection,  by 
overwhelming  force,  of  one  of  the  contending  par- 
ties to  the  other,  or  by  the  faithful  observance  of 
a  reconciling  agreement.  Such  an  observance  would 
scarcely  be  possible  unless  the  terms  were  perma- 
nently embodied  in  written  law.  Custom  is  effectual 
only  when  it  is  universal,  or  nearly  so.  In  the 
absence  of  unanimity  of  opinion,  custom  becomes 
powerless,  or  rather  does  not  exist. 

I  now  return  from  this  incidental  consideration  of 
the  early  employments  of  writing  for  the  purposes 
of  legislation  to  the  further  treatment  of  that  stage 
of  social  progress  marked  by  enlarging  industries 
and  consequent  efforts  to  substitute  in  place  of  the 
violent  redress  of  injuries  the  peaceful  method  of 
judicial  tribunals,  and  the  steps  successively  taken 
until  the  establishment  of  such  tribunals.  Any 
exact  tracing  of  the  progress,  or  of  the  order,  in 
which  the  successive  steps  were  taken  would  be 
impossible.  In  the  civilisations  of  Greece  and  Rome 
the  process  had  become  far  advanced  at  the  time  of 
the  beginning  of  the  known  history  of  those  nations ; 
nor  does  the  history  of  the  States  of  modern  Europe 
throw  more  than  a  feeble  light  upon  the  precise 
nature  of  this  early  process ;  but  if  we  put  together 


Growth  and  Function  39 

the  scattered  pieces  of  information  which  are  still 
within  our  reach,  and  draw  from  them  their  full 
significance,  we  may  trace  the  general  features  of 
the  progress,  and  this  is  all  that  is  necessary.  The 
main  difficulty  in  this  study  is  to  rid  ourselves  of 
the  notion  that  in  these  remote  times  men  had  the 
same  objects  and  interests  in  view  and  were  moved 
by  the  same  desires  as  we  are  conscious  of  ourselves. 
We  may  do  something  towards  removing  this  ob- 
stacle by  attempting  to  form  a  rude  picture  of  early 
society,  beginning  with  barbarian  times,  times  even 
preceding  those  of  increased  industry,  such  a  picture 
as  all  of  them  present  with  greater  or  less  similitude, 
but  which  is  best  furnished  to  us  by  the  accounts 
we  have  of  the  German  tribes,  our  own  ancestors. 
We  are  to  imagine  a  tribe  of  men  living  in  fixed 
habitations,  and  subsisting  mainly  by  the  rude 
cultivation  of  the  earth.  Substantial  equality  among 
the  freemen  is  to  some  extent  broken  by  the  presence 
of  some  elevated  above  the  others  by  superior  prow- 
ess, or  character,  or  accumulations,  or  the  possession 
of  priestly  qualities,  but  there  is  a  head  of  the  tribe, 
an  elected  chief  or  king.  There  is  no  permanent 
political  organisation  for  any  public  purpose.  There 
are  meetings,  some  regular,  and  others  special,  of 
the  freemen,  at  which  matters  involving  war  or 
peace  with  neighbouring  tribes  and  any  other  im- 
portant matters  interesting  to  the  whole  tribe  are 
considered  and  determined.  There  are  many  slaves 
consisting  chiefly  of  captured  enemies,  and  their 
descendants,  and  the  more  powerful  members  of 
the  tribe  are  usually  those  having  the  largest  pos- 


40  Law,  Its  Origin 

sessions  of  land  and  slaves.  Property  and  marriage 
exist.  The  unit  of  the  tribe  is  the  family,  the  mem- 
bers of  which  live  together  and  stand  by  each  other. 
These  institutions  rest  upon  custom  alone.  There  is 
no  ethical  conception  of  a  right  except  some  vague 
belief  that  some  unseen  power  will  punish  one  who 
violates  custom.  To  plunder  from  the  members  of 
any  neighbouring  tribe  is  no  crime.  Custom,  as  the 
word  itself  imports,  is  generally  obeyed,  but  there 
are  frequent  departures  from  it,  and  consequently 
much  violence  and  turbulence  among  tribes  com- 
posed of  the  more  warlike  men ;  but  among  the  more 
peaceful  groups  the  observance  of  custom  may  be 
even  more  complete  than  obedience  to  law  in  modern 
societies.  The  only  security  for  person  or  property 
among  those  who  are  warlike  is  to  let  each  man 
know  that  he  can  invade  neither  without  losing  his 
life  or  suffering  punishment  at  the  hands  of  him 
whom  he  injures.  The  path  of  safety  is  to  follow 
custom.  When  this  is  done  expectation  is  not  dis- 
appointed and  resentment  is  not  provoked.  Tur- 
bulence and  strife  arise  from  many  causes ;  but  the 
principal  ones  are:  (i)  the  mere  love  of  fighting,  the 
disposition  to  quarrel  upon  slight  offence,  the  pas- 
sage from  words  to  blows  and  weapons  and  con- 
sequent homicide.  The  family  of  the  slain  are 
angered  and  seek  revenge  upon  the  slayer  who 
takes  refuge  in  his  own  family,  and  they  stand  to 
their  arms  in  defence.  A  pitched  battle  may  ensue, 
and  other  lives  be  sacrificed,  and  a  family  feud 
occasioned  which  may  not  be  cured  for  a  generation. 
(2)  Disputes  about  land.  Titles,  resting  much  upon 


Growth  and   Function  41 

occupancy  or  tradition,  are  subject  to  much  doubt. 
One  man  charges  another  with  being  a  trespasser 
and  demands  that  he  leave  the  disputed  territory. 
A  refusal  is  nearly  certain  and  a  fight  to  death 
ensues.  (3)  A  man  is  found  in  guilty  intimacy  with 
the  wife  or  daughter  of  another.  An  injury  like  this 
provokes  instant  vengeance.  We  have  survivals  in 
our  own  country  at  the  present  time  of  these  ancient 
modes  of  redress. 

But  the  progress  of  industrialism  is  not  consistent 
with  the  retention  of  these  methods.  The  man  who 
has  begun  to  long  for  increased  possessions  does  not 
wish  to  keep  himself  and  his  retainers  in  arms  to 
defend  them,  and  he  comes  to  dread  the  personal 
peril;  and  the  one  who  labours  has  less  leisure  for 
quarrel.  The  desire  for  peace  is  more  and  more  felt, 
but  it  must  be  "peace  with  honour."  It  must  not 
be  allowed  to  be  thought  that  an  injury  can  be 
inflicted  with  impunity.  The  point  is  how  to  get 
out  of  the  trouble  without  fighting.  The  way  to 
attempt  it  is  obvious  enough;  it  is  not  to  begin 
fighting;  in  other  words,  to  parley,  and  parleying 
means  negotiation  and  possible  compromise.  This 
usually  involves  calling  in  the  aid,  or  accepting  the 
proffered  intervention,  of  ;  the  bystanders  or  other 
third  parties,  and  thus  the  efforts  of  many  are  enlisted 
to  compose  the  strife.  If  a  man  has  been  slain  in 
mutual  combat  provoked  by  both  parties,  the  re- 
sentment is  not  so  deep;  but  the  family  of  the 
victim  have  a  feeling  that  the  slaughter  of  one  of 
their  members  must  be  avenged.  If  they  may  save 
their  honour  without  retaliation  they  are  satisfied. 


42  Law,  Its  Origin 

The  payment  of  a  sum  of  money  or  delivery  of  other 
property  means  that  the  aggressors  have  purchased 
peace  from  the  friends  of  the  victim  and  thus  ac- 
knowledged their  power.  Accordingly,  we  find  a 
custom  established  everywhere  in  barbarous  society 
of  the  payment  of  a  certain  fixed  sum  by  the  family 
of  one  who  has  slain  another  to  the  family  of  the 
victim  by  way  of  compromise  for  the  injury.  It  would 
be  nearly  true  to  say  that  we  know  of  no  race  or  tribe 
of  men  in  the  past  who,  or  whose  ancestors,  in  the 
case  of  civilised  people,  did  not  have  this  custom, 
or  any  now  barbarous  tribe  which  does  not  have  it. 
We  do  not  indeed  find  it  in  existence  at  the  time 
of  the  earliest  historical  accounts  of  Greece  and  Rome 
which  have  been  preserved  to  us ;  but  those  accounts 
do  not  reach  back  to  the  really  barbarous  times  of 
those  nations.  The  Laws  of  Solon  and  the  Twelve 
Tables  of  Rome  were  regulations  for  peoples  who 
had  for  centuries  emerged  from  a  state  of  barbarism, 
but  we  can  not  doubt  that  if  light  were  thrown  upon 
the  antecedent  periods  we  should  find  that  this 
method  of  composing  strife  and  preventing  blood- 
shed preceded,  among  them,  the  selection  of  magis- 
trates to  declare  and  execute  law.1  There  are  in  the 
poems  of  Homer  many  evidences  that  such  was  the 
fact,  and  lexicographers  inform  us  that  the  Greek 
word  TroivTJ  and  the  Latin  poena  originally  signi- 
fied the  price,  or  composition,  by  which  crime  was 
expiated.  The  Germans,  our  own  ancestors,  were 
found  in  this  condition  of  barbarism  within  historic 
times,  and  Tacitus  informs  us  that  all  crimes  were 

>  Koenigswarter ,  Dtveloppement  de  la  Soctitt  Humaine  Part  ii. ,  ch.  i . 


Growth  and  Function  43 

compounded  by  the  payment  of  cattle.1  The  an- 
nals of  the  Jews  do  not  carry  us  back  to  the  times 
when  they  were  barbarians,  yet  that  the  practice 
of  compounding  was  once  prevalent  among  them 
is  manifest  from  passages  in  the  old  scriptural 
writings.2  Among  the  savages  and  barbarians  of  our 
own  day,  the  custom  of  individuals  or  families  to 
avenge  their  own  wrongs  and  to  accept  compensa- 
tion as  the  price  of  forbearance  may  be  said  to  be 
universal.  Mr.  Alexander  Sutherland,  in  his  interest- 
ing and  valuable  work  entitled  The  Origin  and 
Growth  of  the  Moral  Instinct,  has  especially  pointed 
out  the  payment  of  compensation  for  violent  injuries 
as  being  the  first  step  from  the  indulgence  of  retalia- 
tive  vengeance  towards  a  more  peaceful  redress. 
He  says :  ' '  Somewhere  about  the  level  of  the  higher 
savages,  or  more  generally  of  the  lower  barbarians, 
the  increase  of  settled  life,  and  the  possession  of 
huts  and  crops  liable  to  destruction  in  war,  produce 
a  greater  appreciation  of  the  advantages  of  peace. 
Feuds  are  now  avoided  by  the  payment  of  com- 
pensation. According  to  Morgan  (League  of  the 
Iroquois,  p.  331),  if  an  Iroquois  committed  a 
murder,  a  feud  was  at  once  established  between 
the  two  families,  unless,  as  was  sometimes  done, 
the  relatives  of  the  murderer  refused  to  stand  by 
him;  or  unless,  as  was  far  more  often  the  case, 
they  agreed  to  make  a  payment  in  wampum  or 
other  property,  to  the  family  of  the  murdered  man. 
Galton  tells  us  that  among  the  Damaras  a  murder 
will  commence  a  feud  unless  the  family  of  the  mur- 

1  Germama,  12.  2  Num.  xxxv.,  19. 


44  Law,  Its  Origin 

derer  pays  two  oxen  to  that  of  the  person  slain. 
Of  the  Maoris,  Thomson  says  (i.,  123):  'Revenge  was 
one  of  a  chief's  first  duties ;  an  insulted  New  Zealander 
would  rush  to  his  tribe  and  relate  the  injury  he  had 
suffered ;  then,  if  payment  were  refused,  war  might 
ensue.'  Land  and  women  were  the  chief  causes  of 
strife.  They  were  cautious  of  rushing  into  wars,  and 
in  every  dispute  mediations  were  gladly  accepted 
until  blood  was  actually  shed.  Every  offence  but 
murder  had  some  pecuniary  equivalent. 

"Guinnard  states  that  the  Patagonians  (or  Arau- 
canians)  '  put  to  death  the  enemies  of  a  slain  person, 
unless  they  agree  to  pay  a  heavy  ransom,'  (p.  179) 
and  among  all  the  more  primitive  negro  races,  with  no 
exceptions  that  I  have  noticed,  murder  can  be  atoned 
for  with  a  sufficient  payment.  Brookes  says  that 
among  the  Dyaks  the  ordinary  compensation  for 
murder  is  worth  about  eight  pounds  sterling ;  and  St. 
John  says  that  adultery  is  compounded  for  by  a 
customary  fine  to  the  family  that  has  been  aggrieved. 
Some  barbarian  races,  more  vindictive  or  less  avari- 
cious than  others,  are  with  greater  difficulty  induced 
to  forego  the  blood  penalty  for  a  payment ;  but  there 
is  none,  so  far  as  I  know,  in  which  it  is  not  more  or 
less  customary  to  accept  compensation  and  avoid  a 
feud."  Mr.  Sutherland's  book,  which  fell  under  my 
notice  when  I  had  nearly  completed  these  lectures, 
contains  a  very  instructive  chapter  on  "The  Growth 
of  Law"1  from  which  the  above  passage  is  taken 
and  in  which  I  am  glad  to  find  a  confirmation  of  my 
own  views. 

1  Vol.  ii.,  p.  163. 


Growth  and  Function  45 

Prof.  Cherry,  in  his  lectures  upon  The  Growth  of 
the  Criminal  Law  in  Ancient  Communities,  com- 
pares the  stage  of  barbarism  in  four  ancient  peoples 
widely  separated  in  time  and  geographical  situation, 
and  finds  in  each  of  them  the  same  practice  of  re- 
dressing injuries  by  private  retaliation,  or  self-help, 
tempered  by  composition  on  the  payment  of  a 
ransom.  These  four  peoples,  some  of  them  em- 
bracing large  parts  of  the  human  race,  were  the 
ancient  Irish,  the  Hebrews,  the  Mahometans,  and 
the  early  English.  He  might  have  included  in  the 
range  of  his  observation  numerous  societies  of  bar- 
barians now  living  in  which  the  same  methods  of 
repressing  internal  strife  are  employed. 

But  the  evidences  are  numberless,  and  the  fact 
may  be  regarded  as  universal  and  admitted.1  No- 
where does  the  practice  appear  more  conspicuously 
than  among  the  barbarian  conquerors  of  Western 
Europe,  including  England.  That  it  was  the  only, 
or  principal,  form  in  which  violence  and  crime  were 
repressed  is  manifest  from  the  fact  that  the  Laws 
of  the  Barbarians  are,  to  a  very  large  extent,  occu- 
pied in  enumerating  the  various  compensations  which 
are  to  be  paid  for  injuries  done  to  person  or  property, 
and  the  Laws  of  Alfred  present  the  same  feature. 

But  it  must  not  be  supposed  that  the  custom  of 
accepting  compensation,  even  when  the  amounts 
were  fixed  by  what  was  called  the  law,  such  as  the 
Laws  of  the  Barbarians  and  of  Alfred  just  mentioned, 
really  amounted  to  what  is  properly  called  law. 

1  The  chapter  in  Koenigswarter  contains  the  fullest  information. 
Part  ii.,  ch.  i. 


46  Law,  Its  Origin 

These  so-called  laws  were  not  laws  in  the  modern 
sense  of  written  law — that  is,  commands  which 
would  be  enforced  by  the  State  in  a  formal  manner. 
Of  such  law  there  was  at  the  time  none,  because 
there  were  no  tribunals  to  declare,  interpret,  and 
enforce  it.  The  very  fact  that  the  compensation 
was  resorted  to  as  the  only  means  of  preventing 
violence  and  bloodshed  is  complete  proof  that  no 
other  law  than  private  vengeance  or  self-help 
existed.  If  any  tribe  or  people  had  the  power  to 
compel  the  acceptance  of  compensation  for  murder, 
it  would  have  had  power  to  prohibit  murder  directly 
and  to  enforce  the  prohibition  by  effective  punish- 
ment. The  object  of  the  laws  fixing  the  amount  of 
the  wergild  was  to  supply  an  indefiniteness  of  custom. 
Inasmuch  as  the  compensation  was  the  fruit  of  a 
parleying  between  the  combatants,  there  would  be 
contention  about  the  amount,  and  such  amount 
would  exhibit  wide  differences  according  to  the 
nature  of  the  offence  and  the  character  of  the 
parties.  Where  there  was  a  willingness  to  accept 
a  compensation  there  would  still  remain  a  difference 
about  the  nature  and  amount  of  it.  The  aggrieved 
party  could  honourably  accept  an  amount  provided 
it  was  fixed  by  some  one  other  than  his  adversary. 
The  laws  just  mentioned  assumed  to  determine  the 
sums  for  every  description  of  offence,  and  this  de- 
cision would  be  eagerly  accepted  by  a  party  who 
wished  to  save  himself  the  peril  of  deadly  strife, 
and  thus  the  amounts,  with  the  aid  of  the  laws, 
would  come  to  be  established  by  custom.  Compen- 
sation, therefore,  was  no  certain  preventative  of 


Growth  and  Function  47 

violence.  It  was  the  recognised  right  of  the  injured 
party  to  refuse  to  accept  it,  if  he  chose;  and  what 
would  then  happen?  Manifestly  as  the  attempt  to 
prevent  a  fight  had  failed,  it  must  take  place,  and 
the  parties  must  stand  up  for  it.  The  right  of  a  party 
to  redress  an  alleged  wrong  by  his  own  arm  is  evident 
from  the  fact  that  when  all  efforts  for  a  pacification 
had  failed,  rules  were  made  for  conducting  the 
inevitable  fight.  This  was  the  origin  of  the  judicial 
trial  by  battle,  of  which  Gibbon  says:  "It  was  not  as 
a  mode  of  proof  that  the  combat  was  received,  but 
in  every  case  the  right  to  offer  battle  was  founded 
on  the  right  to  pursue  by  arms  the  redress  of  an 
injury."  However,  with  the  progress  of  indus- 
trialism the  effort  to  prevent  violence  would  increase, 
and  if  an  injured  party  refused  to  be  pacified  after 
his  adversary  had  offered  the  customary  redress, 
the  remonstrances  of  the  fellow-tribesmen  would 
be  employed,  and  if  these  failed,  intimations,  or  a 
plain  declaration,  would  follow  that  the  tribe  was 
determined  upon  peace,  and  if  the  obstinate  party 
persisted  in  his  purpose,  he  would  encounter  a  force 
which  would  render  the  strife  dangerous  only  to 
himself.  He  must  do  something,  and  the  question 
is  what  he  shall  do.  There  is  but  one  answer  to  this : 
he  must  leave  it  to  some  third  person  to  say  what 
he  shall  do,  and  this  is  arbitration,  the  sole  possible 
resort  which  the  parties  to  a  deadly  strife  can  have, 
and  preserve  the  point  of  honour,  when  one  refuses 
to  accept  the  redress  offered  by  another,  and  is  made 
aware  that  persistence  in  his  purpose  to  take  revenge 
upon  another  will  cost  him  a  sacrifice  he  is  not 


48  Law,  Its  Origin 

willing  to  make.  This  is  a  lesson  which  has  been 
taught  to  contending  individuals  or  families  through 
many  ages  in  the  past.  Nations  are  beginning  now 
to  learn  it. 

The  person  or  persons  selected  as  arbitrator  or 
arbitrators  would  of  course  be  of  the  class  supposed 
to  be  grave,  impartial,  and  familiar  with  the  customs, 
for  it  would  be  expected  that  the  decision  would  be 
based  upon  comparing  the  conduct  of  the  disputants 
with  the  established  customs.  This  arbitration  of 
quarrels  is  a  near  approach  to  the  establishment  of 
a  court.  All  that  needed  to  be  added  to  constitute 
a  court  was  to  create  permanent  arbitrators  and 
compel  disputants  to  keep  the  peace  and  provide  a 
mode  by  which  they  should  be  forced  to  submit 
their  differences  to  the  decision  of  the  tribunal. 
That  judicial  tribunals  came  to  be  established  by 
taking  this  step  is  open  to  little  doubt;  but  a  long 
period  was  occupied  in  reaching  the  end.  Why  was 
it  that  an  expedient  apparently  so  obvious  was  not 
more  speedily  adopted  ?  Simply  for  the  reason  that 
it  is  a  direct  advance  abolishing  self-help  by  sub- 
stituting public  help ;  and  this  requires  the  conscious 
action  of  society  as  a  corporate  whole.  It  must  have 
a  corporate  will  and  a  corporate  power — that  is,  it 
must  become  a  living  intelligent  organism.  Some 
individual,  or  some  selected  individuals,  must  be 
capable  of  commanding  the  physical  force  of  the 
body  of  society,  must  be  able  to  contribute  methods 
of  compulsory  arbitration,  and  have  the  power 
needed  to  enforce  them.  This  condition  will  not 
arise  until  the  demand  for  it  becomes  sufficiently 


Growth  and  Function  49 

strong,  but  the  demand  will  come  as  soon  as  the 
industrial  spirit  seeking  increased  possessions  and 
more  perfect  peace  in  order  to  increase  them,  and 
to  hold  them,  has  created  the  social  conviction  of 
a  necessity  for  the  improvement.  The  step  may  be 
facilitated  by  accident.  War  with  neighbouring 
tribes  may  bring  forth  a  military  chief  who  will  be 
able  to  make  his  power  permanent  and  thus  erect 
himself  into  a  king  or  civil  chieftain,  or  a  civil  coun- 
cil may  be  voluntarily  chosen,  and  a  head  thus 
given  to  society  capable  of  discerning  and  supplying 
public  needs;  but  such  as  these  can  not  originate 
out  of  their  own  heads  a  scheme  of  improvement 
and  impose  it  upon  society  regardless  of  custom. 
There  are  no  Law-givers  such  as  are  reverenced  in 
history.  Moses,  Lycurgus,  and  Solon  took  the  cus- 
toms of  their  time,  and  gave  them  form  and  furnished 
better  methods  of  securing  their  enforcement.  Solon, 
according  to  Plutarch,  when  asked  why  he  did  not 
give  the  Athenians  better  laws,  answered  that  he 
gave  them  the  best  they  were  fitted  to  receive. 
Niebuhr  informs  us  that  "no  one  in  the  ancient 
world  took  it  into  his  head  to  make  a  new  system  of 
laws.  In  the  Middle  Ages,  also,  a  legislation  merely 
springing  from  the  will  of  a  law-giver  is  scarcely  to 
be  traced  anywhere";  and  the  same  view  is  well 
expressed  by  Coulanges,  who  says  "that  legislators 
did  not  exist  among  the  ancients.  Nor  did  ancient 
law  originate  with  the  votes  of  the  people.  In  early 
days  the  laws  present  themselves  as  something  even 
then  venerable  and  unchangeable."1 

1  Coulanges,  The  Ancient  City,  p.  250. 
4 


50  Law,   Its  Origin 

For  obvious  reasons,  as  already  observed,  the 
passage  from  self-help,  including  arbitration,  can 
not  be  traced  in  the  history  of  Greece  or  Rome. 
At  the  times  to  which  our  earliest  accounts  of  those 
nations  reach,  courts  of  some  description  were  al- 
ready established,  the  age  of  barbarism  having  been 
long  anterior,  but  the  description  of  the  Legis  Actio 
Sacramenti,  the  most  antique  form  of  Roman  pro- 
cedure, and  the  parent  form  of  all  subsequent  civil 
actions,  as  preserved  to  us  in  the  Institutes  of  Gaius, 
bears  upon  its  face  the  marks  of  its  origin.  The 
form  of  proceeding  is  thus  described  by  Prof.  Maine : 
"Two  armed  men  are  wrangling  about  some  dis- 
puted property.  The  Praetor,  vir  pietate  gravis, 
happens  to  be  going  by,  and  interposes  to  stop  the 
contest.  The  disputants  state  their  case  to  him, 
and  agree  that  he  shall  arbitrate  between  them."1 
The  Legis  Actio  Sacramenti  was  compulsory,  but  the 
record  in  it,  embracing  the  above  statement,  clearly 
shows  that  the  Praetor,  the  Judge,  was  the  suc- 
cessor of  a  private  citizen  to  whom  two  disputants 
had  voluntarily  submitted  their  difference. 

The  corresponding  stage  in  the  social  history  of 
Western  Europe  is,  for  similar  reasons,  enveloped 
in  equal  obscurity.  History  affords  rare  and  obscure 
glimpses  of  the  details  of  life,  although  there  are  large 
masses  of  documentary  matter  still  unexamined 
which  would  probably  furnish  much  additional 
light.  But  such  evidences  as  are  available  agree 
in  making  it  probable  that  the  first  step  in  repressing 
the  private  redress  of  wrongs  among  Western  Euro- 

i  Ancient  Law.  p.  376 


Growth  and  Function  51 

pean  peoples  was  in  bringing  about  an  arbitration 
of  quarrels.  Prof.  Maine  has  pointed  out  a  very 
significant  correspondence  between  the  functions  of 
the  Druids  as  described  by  Caesar  in  his  Commen- 
taries on  the  Gallic  War  and  those  of  the  ancient 
Brehons  as  they  are  revealed  in  the  translations  of 
the  ancient  so-called  "Irish  Laws"  published  not 
many  years  ago.  Caesar  informs  us — I  give  the 
language  of  Prof.  Maine — 

that  the  Druids  were  supreme  judges  in  all  public  and  private 
disputes;  and  that,  for  instance,  all  questions  of  homicide,  of 
inheritance,  and  of  boundary  were  referred  to  them  for  deci- 
sion, .  .  .  that  the  Druids  presided  over  schools  of 
learning  to  which  the  better  youth  nocked  eagerly  for  instruc- 
tion, remaining  in  them  sometimes  (so  he  was  informed)  for 
twenty  years. 

Prof.  Maine  further  says,  referring  to  the  newly 
published  "Law-Tracts,"  relating  to  the  ancient 
laws  of  Ireland  : 

The  extensive  literature  of  law  just  disinterred  testifies  to 
the  authority  of  the  Brehons  in  all  legal  matters,  and  raises 
a  strong  presumption  that  they  were  universal  referees  in 
disputes.  Among  their  writings  are  separate  treatises  on 
inheritance  and  boundary,  and  almost  every  page  of  the 
translation  contains  references  to  the  '  eric '  fine  for  homicide. 

We  have  here  convincing  proof  that  in  the  widely 
separated  divisions  of  the  Celtic  societies  at  sub- 
stantially the  same  social  stage  there  was  a  class  of 
persons  who  made  the  customs  of  their  peoples  the 
subject  of  especial  study  and  were  habitually  em- 
ployed as  arbitrators  in  disputes.  This  employment 
of  arbitrators  must  have  been  voluntary,  for  there 


52  Law,  Its  Origin 

was,  at  the  time,  no  organised  society  capable  of 
enacting  laws  or  contriving  other  social  arrange- 
ments. The  Brehon  laws,  so-called,  do  not  purport 
to  be  the  enactments  of  any  public  authority,  but 
collections  of  the  legal  maxims  and  rules  adopted 
by  the  Brehons  in  performing  the  judicial  functions 
voluntarily  bestowed  upon  them.  The  fact  that 
among  these  ancient  peoples  there  were  classes  of 
persons  devoting  themselves  solely  to  what  may  be 
called  the  law — that  is,  the  rules  and  customs  observed 
by  their  tribes,  proves  that  there  was  a  demand  for 
their  knowledge  and  services  as  the  arbiters  of  dis- 
putes, and  that  such  demand  had  existed  for  long 
periods.  They  could  have  no  authority  except  such 
as  was  derived  from  the  assent  of  disputants,  and 
such  assent  must  have  been  habitually  given;  for 
otherwise  there  would  not  have  arisen  the  demand 
for  such  a  class.  The  custom,  therefore,  was  brought 
about  of  displacing  the  bloodshed  and  violence  of 
self-help  with  the  peaceful  method  of  arbitration. 
The  fair  inference  is  that  all  the  well  disposed  of  the 
tribes  resorted  to  these  customary  methods  of  settling 
disputes,  and  that  those  who  refused  to  do  so  were 
those  vicious  and  depraved  members  who  habitually 
defied  custom — that  is,  the  lawless  class.  Arbitration 
could  not  be  literally  compelled,  for  its  very  existence 
implied  that  there  was  no  organised  public  authority 
which  could  compel  anything;  but  custom  supplied 
a  powerful  force  in  bringing  it  about,  and  other  com- 
pelling influences  were  added  to  custom.  Among 
the  Celtic  tribes  described  by  Caesar,  if  a  disputant 
refused  to  obey  the  decision  of  a  Druid  he  was,  as  Sir 


Growth  and  Function  53 

Henry  Maine  gathers,  excommunicated,  by  which  we 
are  to  understand  that  he  was  excluded  from  the  pro- 
tection and  shut  off  from  the  fellowship  of  his  tribe, 
and  this  substantially  made  him  an  outlaw,  which  was 
regarded  as  the  severest  of  penalties.  Where  the 
rule  of  the  priesthood  is  strong,  as  it  was  among 
the  tribes  of  Gaul,  and  must  necessarily  be  where 
the  priests  exercise  judicial  functions,  this  depriva- 
tion of  privileges  operates  as  a  heavy  punishment. 
The  Brehons  do  not  appear,  at  least  after  the  con- 
version of  the  Irish  to  Christianity,  to  have  been  a 
priestly  class;  but  they  were  always  closely  allied 
to  the  chief  or  king  of  the  clan,  and  could  bring 
their  influence  to  aid  in  enforcing  their  decisions. 

There  is  less  evidence  of  the  settlement  of  quarrels 
by  arbitration  among  the  German  tribes  and  the 
other  ancestors  of  the  English  people.  There  was 
originally  among  the  Germans  what  stood  for  a 
rough  public  administration  of  justice  by  those 
popular  assemblies  which  seem  to  have  been  uni- 
versal among  those  tribes.  Our  knowledge  of  their 
customs  is  derived  mainly  from  the  Germania  of 
Tacitus,  and  he  informs  us  that  these  assemblies 
took  cognizance  of  all  judicial  matters.  There 
could  have  been  little  uncertainty  in  the  enforce- 
ment of  the  judgments  of  these  bodies.  Their 
authority  was  unlimited.  Every  freeman  was  bound 
to  be  present,  and  could  be  obliged  to  answer  any 
complaint.  The  rude  clashing  of  shields  and  brand- 
ishing of  spears  in  the  hands  of  the  judges,  which 
announced  a  decision,  sufficiently  indicated  that  it 
must  be  unhesitatingly  obeyed.  It  may  well  be 


54     Law :  Origin,  Growth  and  Function 

imagined  that  such  a  body  would  listen  to  no  trifling 
complaints,  and  that  self-help  must  still  be  the  main 
reliance  for  defence  against  minor  injuries,  and  also 
that  the  parties  to  any  important  dispute  who  pre- 
ferred not  to  fight  would  exhaust  every  means  of 
pacification,  including  arbitration  by  a  third  person, 
before  they  provoked  the  rough  justice  of  armed 
warriors.  The  German  conquerors  of  England  of 
course  carried  their  customs  with  them,  and  we  find 
the  Court  of  the  Hundred,  the  legitimate  successor 
of  the  popular  assembly,  the  first  well-known  judicial 
institution  in  the  history  of  England.  It  there 
exchanged  its  tribal  for  a  territorial  jurisdiction,  and 
until  the  further  integration  of  society  under  a  more 
complete  recognition  of  royal  power  it  was  the  chief 
method  for  avoiding  the  violence  of  self-help  by 
the  substitution  of  judicial  action.  But  the  rude 
instrumentality  of  a  popular  court  constituted  of  the 
great  body  of  freemen,  is  a  very  insufficient  guaranty 
of  that  peace  and  order  which  advancing  industrialism 
requires.  It  may  punish  great  offences,  but  the 
minor  wrongs  will  still  be  left  unredressed,  except  by 
private  punishment,  and  while  this  may  moderate 
and  tend  to  repress  the  worst  forms  of  violence,  no 
general  peace  can  be  brought  about  except  by  pro- 
ducing peace  in  small  localities,  and  this  can  be  done 
only  through  the  instrumentality  of  a  political  organ- 
isation of  localities  providing  means  by  which  quar- 
rels and  disturbances  may  be  prevented;  in  other 
words,  courts  must  be  brought  into  existence,  and 
voluntary  arbitration  be  superseded  by  the  exercise 
of  compulsory  jurisdiction. 


LECTURE  III 

I  N  giving  a  general  view  of  early  judicial  tribunals, 
1  I  can  best  direct  attention  to  England,  partly 
because  I  have  never  studied  this  part  of  the  history 
of  other  nations,  and  partly  because  the  course  of 
social  progress  elsewhere  has  not,  as  I  suppose,  in 
substance  been  different  from  that  exhibited  in 
England.  To  make  this  view  intelligible  we  must 
glance  at  the  general  condition  of  society  at  the 
time. 

The  tribal  organisation  of  the  Anglo-Saxon  con- 
querors, such  as  had  obtained  in  the  forests  of 
Germany,  had  become  superseded,  and  that  equality 
in  the  holding  and  enjoyment  of  the  land  which  was 
one  of  the  features  of  that  organisation,  had  passed 
away  with  it.  England  was  a  conquered  country. 
It  had  been  acquired  by  the  skill  and  valour  of 
bands  of  warriors,  and  a  great  part  of  the  land, 
as  happens  in  all  such  cases,  was  awarded  to  the  vic- 
tors in  proportions  assumed  to  correspond  to  the 
various  degrees  of  rank  and  worth.  The  leader  of 
the  host  became  the  king  and  received  the  largest 
share;  next  came  those  of  noble  birth,  or  superior 
prowess,  who  composed  his  immediate  retinue,  the 
thanes  or  nobles,  to  whom  extensive  awards  were 
made ;  and  lastly,  the  common  warriors.  These,  with 
the  remnants  of  the  vanquished  Britons,  became  the 
people  of  England.  At  first  there  were  several  king- 

55 


56  Law,  Its  Origin 

doms,  but  these  were  eventually  consolidated,  as  a 
consequence  of  war,  into  one.  In  place  of  the  tri- 
bal organisation  a  territorial  one  was  established  em- 
bracing the  whole  kingdom,  and  this  constituted  a 
unity  of  which  the  king  was  the  head.  His  power 
did  not,  however,  like  that  of  a  Roman  emperor,  ex- 
tend to  the  making  of  laws.  The  traditions  of  the 
personal  independence  of  the  German  tribes  still 
remained,  and  no  unacceptable  authority  under  the 
name  of  law  could  be  enforced  by  the  king  against 
the  powerful  thanes,  the  great  landholders  of  the 
kingdom,  without  the  aid  of  a  standing  army  such  as 
he  did  not  possess.  Industry,  although  it  had  be- 
come greatly  extended  beyond  that  of  a  barbarian 
tribe,  was  still  very  limited,  the  principal  occupation 
being  that  of  the  cultivation  of  the  land.  Of  educa- 
tion and  knowledge  there  was  scarcely  any.  England 
had  become  Christianised,  and  with  it  the  author- 
ity of  the  Catholic  Church  had  been  extended  over  the 
land,  and  whatever  there  was  of  learning  at  the  time 
was  mainly  to  be  found  among  the  members  of  the 
priesthood.  The  actual  condition  of  society  was 
principally  determined  by  the  nature  of  the  owner- 
ship of  the  land.  The  large  proprietors  cultivated 
large  portions,  and  committed  the  possession  of  other 
large  portions  to  tenants  for  cultivation  by  them,  for 
rents  or  other  services.  Those  who  had  no  land,  vil- 
leins, or  slaves,  were  the  tillers  of  the  soil.  Any  such 
occupation  of  land  is  essentially  feudal  in  its  nature, 
although  it  may  lack  the  precise  forms  which  strict 
feudalism  exhibited  as  it  developed  itself  on  the  con- 
tinent. The  land-owners  were  the  men  of  independ- 


Growth  and  Function  57 

ence  and  power.  The  landless  were  dependent  upon 
them  for  their  support,  and  for  nearly  everything 
else.  Their  condition  approached  that  of  slavery, 
and  many  of  them  were  slaves.  All  the  responsibili- 
ties of  society  devolved  upon  the  landholding  class, 
and  it  really  ruled  whether  with  or  without  the  instru- 
mentality of  courts.  The  large  landholder  exercised 
an  authority  of  a  paternal  nature  over  his  tenants  and 
workmen;  and  when  the  rigid  feudal  system  became 
established,  he  wielded  it  through  the  instrumentality 
of  a  seignorial  court,  such  as  the  court  baron  in  Eng- 
land after  the  Norman  Conquest.  Violence  and  its 
accompanying  crimes,  theft  and  robbery,  such  as  a 
society  advancing  out  of  barbarism  first  seeks  to 
repress,  were  committed  principally  among  the  lower 
classes,  and  the  business  of  the  courts,  such  as  we 
find  established,  consisted  in  efforts  to  repress  and 
punish  these.  The  same  condition  which  has  been 
found  in  the  early  history  of  all  known  nations  was 
exhibited  here.  As  has  been  observed  by  Prof. 
Maine,  the  first  step  in  the  public  enforcement  of  law 
is  the  constitution  of  some  sort  of  a  tribunal  with 
something  in  the  nature  of  a  procedure  for  the  pun- 
ishment of  offences.  These  rude  tribunals  we  find 
established  in  the  earliest  history  of  England,  in  the 
principal  divisions  of  the  territory.  There  was  the 
Court  of  the  Hundred,  and  the  Court  of  the  County, 
and  perhaps  other  petty  tribunals.  Of  the  precise 
origin  of  these  courts  we  have  no  knowledge,  and  but 
little  of  their  actual  constitution  and  proceedings. 
We  know  of  no  legislation  or  other  public  act  creat- 
ing them.  Certain  persons,  the  sheriffs  and  other 


58  Law,  Its  Origin 

officials  and  the  whole  body  of  free  landholders,  were 
required  to  attend  them,  and  were  called  the  suitors. 
They  constituted  the  judges.  Over  these  tribunals 
the  King  exercised  some  supervision,  exerted  princi- 
pally through  the  sheriffs,  who  were  his  officers. 
There  was  little  of  purely  private  litigation,  for  there 
was  as  yet  but  a  feeble  development  of  civil  rights, 
and  this  little  mainly  arose  out  of  disputes  concern- 
ing the  possession  of  land.  Other  business  than  that 
of  a  judicial  nature  was  transacted  at  these  courts, 
such  as  the  making  of  transfers  of  land.  There  were 
no  professed  lawyers  attending  them,  and  their  pro- 
ceedings were  extremely  rude  and  simple. 

Besides  these  local  tribunals,  the  King  himself  held 
a  court.  The  head  of  a  State  must  necessarily  be 
the  fountain  of  justice,  and,  after  the  establishment 
of  courts,  the  final  arbiter  in  all  important  disputes. 
The  King's  Court,  as  we  first  find  it,  was  held  at  no 
particular  place,  but  wherever  he  might  be.  It  was 
held  by  the  King  himself,  or  by  some  high  official 
deputed  by  him.  It  punished  any  crime  committed 
in  his  presence  or  upon  his  lands,  and  it  took  cog- 
nisance of  all  controversies  voluntarily  submitted  to 
him.  The  great  nobles  and  landholders  were  not 
inclined  to  submit  their  disputes  to  the  rude  local 
tribunals  held  by  ignorant  men,  but  the  King's  Court 
possessed  an  authority  and  dignity  which  com- 
manded their  respect. 

No  radical  change  in  the  constitution  of  these 
courts  was  effected  at  once  by  the  Norman  Conquest. 
The  introduction  of  the  feudal  system  brought  with 
it  the  establishment  of  the  baronial  courts,  and  the 


Growth  and  Function  59 

privilege  of  holding  these  and  courts  of  the  manor 
was  very  often  embraced  in  grants  of  land  by  the 
King ;  but  the  jurisdiction  of  these  was  confined  to 
the  particular  manors  or  baronies,  and  to  disputes 
between  the  tenants  living  upon  them  relating  to  the 
land  and  probably  to  some  petty  offences. 

The  important  question  which  concerns  us  is, 
What  was  the  law  administered  in  these  tribunals  and 
where  was  it  to  be  found  ?  The  answer  is  very  plain. 
It  was  custom.  There  was  as  yet  no  legislation,  and 
consequently  no  written  law.  Nor  were  there  any 
judicial  precedents  which  could  be  invoked,  nor  any 
treatises  of  writers  of  greater  or  less  authority  con- 
cerning the  law.  Some  of  the  great  ecclesiastics  at- 
tached to  the  court  may  have  had  some  knowledge  of 
ecclesiastical  law  and  through  that,  of  the  Roman 
law,  but  this  could  be  of  but  little  direct  use  in  the 
disposition  of  the  matters  brought  before  tribunals 
other  than  the  King's  Court.  All  complaints  by  one 
man  against  another,  whether  of  a  civil  or  criminal 
nature,  arose  from  the  fact  that  something  had  been 
done  contrary  to  the  complainant's  expectation  of  what 
should  have  been  done;  and  as  every  man  expects  that 
others  will  act  according  to  custom,  the  complaint 
would  be  in  fact,  if  not  in  form,  that  an  act  contrary 
to  custom  had  been  committed  to  the  injury  of  the 
complainant.  If  the  party  against  whom  the  com- 
plaint was  made  denied  the  accusation,  he  necessarily 
asserted  that  what  he  did  was  in  compliance  with 
custom.  The  dispute  therefore  necessarily  turned, 
if  the  act  was  admitted  or  established,  upon  the  ques- 
tion what  the  custom  was,  and  these  rude  tribunals 


6o  Law,  Its  Origin 

held  by  the  principal  and  most  intelligent  men  were 
well  adapted  to  determine  that  question.  The  judges 
in  these  acted  in  accordance  simply  with  their  sense 
of  what  was  right,  which  was  necessarily  determined 
by  what  they  thought  to  be  customary.  The  great 
institution  of  property  already  existed,  not  by 
virtue  of  legislative  creation,  but  it  had  grown  up  as 
a  consequence  of  the  customary  action  of  men  long 
before  the  establishment  of  any  court.  The  goods 
and  chattels  which  any  man  held  he  was  permitted 
to  hold  in  peace,  because  such  was  the  custom,  and 
because  every  one  knew  and  felt  that  if  he  should 
attempt  to  take  them  it  would  cost  him  a  fight,  and 
an  unsuccessful  one,  inasmuch  as  all  the  social  forces, 
rude  as  they  were,  would  be  found  on  the  side  of  the 
possessor.  So  also  with  the  security  of  the  person. 
Men  refrained  from  attacking  and  injuring  others,be- 
cause  such  was  the  habit,  and  an  infringement  of  it 
would  bring  punishment  upon  the  offender.  And 
the  same  thing  was  true  of  the  institution  of  the  fam- 
ily and  the  rights  growing  out  of  that.  None  of  these 
rights  grew  originally  out  of  the  establishment  of 
courts,  or  any  other  exercise  of  governmental  power ; 
on  the  contrary,  courts  came  into  existence  for  the  pur- 
pose of  affording  better  protection  to  them.  Custom, 
therefore,  at  this  stage  of  social  progress  is,  as  we  have 
found  it  to  be  in  the  preceding  stages,  the  only  law. 

This  view  is  confirmed  by  the  legal  antiquarians 
who  have  sought  to  discover  by  direct  inquiry  the 
original  sources  of  our  law.  Blackstone  says,  speak- 
ing of  the  early  laws  by  which  society  in  England  was 
governed : 


Growth  and  Function  61 

"  I  therefore  style  these  parts  of  our  law  leges  non  scripts, 
because  their  original  institution  and  authority  are  not  set 
down  in  writing,  as  acts  of  parliament  are,  but  they  receive 
their  binding  power,  and  the  force  of  laws,  by  long  and  im- 
memorial usage,  and  by  their  universal  reception  throughout 
the  kingdom.  In  like  manner  as  Aulus  Gellius  defines  the  /MS 
non  scriptum  to  be  that  which  is  tacito  et  illiterate  hominum 
consensu  et  moribus  expressum."  * 

He  further  informs  us  that 

"about  the  beginning  of  the  eleventh  century  there  were  three 
principal  systems  of  laws  prevailing  in  different  districts,  i. 
The  Mercen-Lage,  or  Mercian  Laws,  which  were  observed  in 
many  of  the  midland  counties,  and  those  bordering  upon  the 
principality  of  Wales,  the  retreat  of  the  ancient  Britons;  and 
therefore  probably  intermixed  with  the  British  or  Druidical 
customs.  2.  The  West-Saxon-Lage,  or  Laws  of  the  West  Sax- 
ons, which  obtained  in  the  counties  to  the  south  and  west  of 
the  island,  from  Kent  to  Devonshire.  These  were  probably 
much  the  same  with  the  Laws  of  Alfred  above  mentioned, 
being  the  municipal  law  of  the  far  most  considerable  part  of 
his  dominions,  and  particularly  including  Berkshire,  the  seat 
of  his  peculiar  residence.  3.  The  Dane-Lage,  or  Danish  Law, 
the  very  name  of  which  speaks  its  original  and  composition. 
This  was  principally  maintained  in  the  rest  of  the  midland 
counties,  and  also  on  the  eastern  coast,  the  part  most  exposed 
to  the  visits  of  that  piratical  people."  2 

Out  of  these  three  laws,  Roger  Hoveden  and  Ra- 
nulphus  Castrensis  inform  us,  King  Edward  the  Con- 
fessor extracted  one  uniform  law  or  digest  of  laws,  to 
be  observed  throughout  the  whole  kingdom,  and  the 
author  of  an  old  manuscript  chronicle  assures  us  like- 
wise that  this  work  was  projected  and  begun  by  his 
grandfather,  King  Edgar.  And,  indeed,  a  general 
digest  of  the  same  nature  has  been  constantly  found 

i  Bl.  Com.,  bk.  i.,  p.  64  z  Ibid.,  p.  65. 


62  Law,  Its   Origin 

expedient,  and  therefore  put  in  practice  by  other 
great  nations,  which  have  been  formed  from  an  as- 
semblage of  little  provinces,  governed  by  peculiar 
customs."1 

Blackstone  further  says :  ' '  These' '  (the  laws  or  cus- 
toms above  mentioned)  "are  the  laws  which  gave  rise 
and  original  to  that  collection  of  maxims  and  customs 
which  is  now  known  by  the  name  of  the  common 
law.  "2  I  do  not  concur  in  the  opinion  of  Blackstone 
that  our  present  common  law  rests  entirely  upon 
these  ancient  customs,  but  I  cite  the  passages  to  show 
that,  in  the  opinion  of  a  profound  student  of  the  his- 
tory of  our  law,  these  customs  were  the  only  law  ad- 
ministered or  known  by  the  courts  at  the  time  of  their 
establishment. 

The  next  period  to  which  I  shall  call  attention  is  that 
embracing  the  improvement  and  perfection  of  legal 
tribunals.  I  need  not  say  that  this  work  of  improve- 
ment must  proceed  pari  passu  with  social  progress. 
That  progress  is  manifested  in  increasing  peace,  order, 
and  industry.  Such  increase  involves  new  forms  of 
conduct,  new  conceptions  of  right,  and  demands  bet- 
ter methods  of  legal  enforcement,  and  such  better 
legal  methods  in  turn  react  upon,  improve,  and  ad- 
vance the  conceptions  of  right. 

There  were  several  modes  in  which  these  tribunals 
in  England  were  improved  and  perfected.  The  im- 
provement, of  course  began  at  the  top,  and  the 
impulses  received  there  were  communicated  through- 
out the  system.  In  the  first  place,  itinerant  justices 
came  to  be  appointed  by  the  King,  who  journeyed 

»  Roger  Hoveden,  p.  66.  *  Ibid.,  p.  67. 


Growth  and  Function  63 

throughout  the  realm,  and  took  cognisance  of  the 
proceedings  in  the  courts  and  of  the  sheriffs  and  other 
officials.  These  judges  were  selected  from  the  reti- 
nue of  officials  surrounding  the  King,  and  were  often 
men  of  considerable  learning  and  skill.  They  com- 
pelled a  better  performance  by  the  inferior  courts  of 
their  functions,  and  served  to  give  instruction  to  the 
judges  holding  them.  In  the  next  place,  the  King's 
Court  itself,  held  by  the  most  learned  men  of  the  time, 
some  of  whom  were  of  really  superior  abilities,  con- 
tinually enlarged  its  sphere  of  action  by  assuming  a 
larger  original  jurisdiction  over  controversies  and 
developed  into  branches  which  eventually  became 
the  several  courts  known  in  later  times  as  the  Ex- 
chequer, King's  Bench,  and  Common  Pleas.  What- 
ever was  done  in  the  King's  Court  was  everywhere 
recognised,  followed,  and  obeyed,  and  what  was  called 
the  custom  of  the  King's  Court  became  everywhere 
accepted  as  law.  Again,  the  advance  of  society  con- 
stantly developed  new  forms  of  conduct  founded  upon 
new  convictions  of  right,  and  this  created  a  de- 
mand for  new  action  by  the  courts  in  the  way  of 
relief.  At  first  the  forms  in  which  relief  was  obtained 
were  very  few,  and  to  meet  the  new  demands  it  was 
necessary  to  devise  new  forms.  This  was  done  in 
some  instances  by  ordinances  of  the  King  and  his 
Council,  such  as  the  celebrated  Assize  of  Clarendon, 
out  of  which  arose  several  forms  of  action,  the  princi- 
pal of  which  was  the  Assize  of  Novel  Disseisin.  This 
furnished  for  one  who  had  been  wrongfully  ejected 
from  his  lands  an  easy  means  of  recovering  the  pos- 
session without  resort  to  force.  Such  improvement 


64  Law,   Its  Origin 

was  in  the  nature  of  legislation.  But  the  principal 
means  by  which  the  administration  of  justice  was 
improved  was  by  the  device  of  the  issue  of  new  writs 
under  the  authority  of  the  King,  through  which  new 
or  more  complete  judicial  relief  was  obtained.  Where 
a  sense  of  right  had  become  clear,  that  is,  where  cus- 
tom had  become  fixed  and  clear,  but  there  was  no 
form  of  action  adequate  to  give  effect  to  it,  applica- 
tion was  made  to  the  royal  authority  reposed  in  the 
Chancellor.  It  was  there  considered,  and  if  it  seemed 
well  founded,  that  is,  if  the  case  was  one  in  which 
relief  ought  to  be  granted,  a  writ  was  devised  which 
required  a  court  to  take  cognisance  of  the  case.  The 
issuance  of  such  a  writ  was  practically  tantamount  to 
a  new  determination  of  law,  and  the  complainant 
under  it  received  relief  upon  proof  of  the  facts  upon 
which  it  was  granted.  New  writs  of  this  character 
were  from  time  to  time  issued,  each  constituting  some 
new  cause  of  action,  until  the  list  became  exceedingly 
numerous,  and  a  case  could  scarcely  arise  in  which  an 
injury  could  not  be  judicially  redressed.  The  assump- 
tion by  the  Chancellor  of  judicial  functions  in  the  di- 
rect cognisance  and  hearing  of  controversies  for 
which  no  suitable  writ  at  the  common  law  could  be 
framed  completed  the  system  of  judicial  relief. 

There  was  another  very  important  method  of  pro- 
cedure which  has  given  to  English  law,  in  my  estima- 
tion, a  certain  measure  of  superiority.  By  degrees, 
the  pleadings  in  actions  became  so  framed  as  to  lead 
to  the  clear  and  separate  ascertainment  of  matters  of 
fact  to  be  tried  and  determined  by  a  jury.  This 
enables  the  judge  to  consider  calmly  and  without 


Growth  and  Function  65 

distraction  what  the  law  is  arising  upon  a  given  state 
of  facts,  and  leads  to  the  creation  of  an  orderly  sys- 
tem of  the  Law  of  Evidence. 

In  these  modes,  the  principal  of  which  I  have  indi- 
cated, the  rude  tribunals  of  England  and  the  system 
of  procedure  in  them  were  improved  until  they 
reached  the  condition  in  which  we  find  them  there 
and  in  this  country  three  centuries  ago.  The  time 
occupied  in  this  improvement  was  more  than  three 
centuries,  but  the  particular  question  to  which  I  di- 
rect attention  is — What  was  the  law  and  where  was  it 
to  be  found,  which  these  tribunals  recognised  and 
enforced  during  this  period?  The  answer,  I  appre- 
hend, must  still  be  the  same.  It  was  custom,  and 
custom  alone.  It  must  have  been  so,  inasmuch  as 
there  was  no  other  source  from  which  the  law  could 
be  derived.  There  was  no  legislation  creating  law,  or 
next  to  none.  An  occasional  enactment,  like  the 
article  in  the  Great  Charter,  that  no  one  should  be 
deprived  of  his  freedom  without  the  judgment  of  his 
peers,  may  be  found,  but  for  the  great  bulk  of  the  law 
administered  in  these  tribunals  during  the  period 
under  consideration,  no  source  or  authority  can  be 
found  save  that  of  custom.  It  is  indeed  the  period  in 
which  judicial  precedents  come  to  be  known  and  reg- 
ularly followed,  but  what  was  precedent  in  the  first 
instance?  It  was  simply  a  judicial  declaration  of 
custom,  and  it  was  followed,  not  so  much  because  it 
was  precedent,  but  because  it  was  satisfactory  evi- 
dence of  custom.  A  precedent  is  but  authenticated 
custom.  It  is  like  the  coin  of  the  realm.  It  bears 
the  public  stamp  which  evidences  its  genuineness. 


66  Law,  Its  Origin 

We  accept  a  coined  piece  of  gold,  not  in  reality  be- 
cause it  bears  the  public  stamp,  but  because  it  is 
believed,  from  the  stamp,  that  it  contains  a  certain 
quantity  of  gold.  Its  currency  would  at  once  be  lost 
if  there  were  no  certainty  upon  this  point.  The  char- 
acteristic in  early  and  rude  societies — it  is  so  to  a 
much  less  extent  in  enlightened  society — is  that  cus- 
toms, in  many  respects,  are  not  settled  and  are  in 
conflict.  A  judicial  decision  determines  them  so  far 
as  it  extends.  If  it  be  a  correct  one — that  is,  if  the 
true  custom  is  chosen,  (and  by  true  I  mean  the  one 
most  consistent  with  the  largest  usage),  it  is  ac- 
cepted, and  conduct  is  regulated  accordingly,  and  the 
conflicting  practices  are  discredited  and  pass  away. 
This  is  the  reaction  of  the  judicial  power  upon  cus- 
tom, one  of  the  great  instrumentalities  of  social  pro- 
gress. At  this  stage,  therefore,  of  our  investigation, 
custom  is  still  the  law. 

We  now  come  to  the  last  stage  in  our  inquiry  con- 
cerning what  has  actually  governed  the  conduct  of 
men  in  society.  This  is  the  stage  of  full  enlighten- 
ment, such  as  is  exhibited  in  Europe  and  the  United 
States  at  the  present  day,  when  the  legal  tribunals 
whose  progress  I  have  been  tracing  have  reached  a 
condition  of  high  development  and  efficiency.  It  is 
the  stage  of  high  development  in  industry  and  the 
arts  of  social  life.  Our  immediate  point  of  attention 
is  the  character  of  these  tribunals  and  the  actual 
nature  of  the  work  they  perform.  I  take  up  for  ex- 
amination the  courts  of  England  and  the  United 
States,  for  the  reason  that  we  are  best  acquainted 
with  them,  and  because  we  may  be  sure  that  the 


Growth  and  Function  67 

condition  of  courts  in  other  countries,  however  vary- 
ing from  that  of  these,  is  not  fundamentally  different. 

We  find  that  they  are  of  various  sorts,  according  to 
the  matters  of  which  they  take  cognisance,  and  ac- 
cording as  they  exercise  an  original  or  appellate  juris- 
diction. We  find  them  held  by  men  who  have 
received  a  special  professional  education  in  the  law 
and  who  possess  in  general  the  highest  character  for 
ability,  learning,  and  integrity.  We  find  also  a  class 
of  lawyers  of  similar  education  who  attend  to  the 
interests  of  the  suitors  seeking  the  judgment  of  the 
tribunals,  and  whose  business  it  is  to  endeavour  to 
persuade  the  judges  of  the  rightfulness  of  the  conduct 
of  their  clients  in  the  cases  brought  before  the  courts 
for  adjudication.  And  we  find  these  courts  taking 
cognisance  both  of  controversies  between  individuals 
and  controversies  between  individuals  and  the  State. 
Their  judgments,  except  when  held  in  suspense  by 
appeal,  stand  as  the  voice  of  the  law,  and  the  execu- 
tion of  them  is  enforced,  when  necessary,  by  the 
physical  power  of  the  State.  We  find  among  the 
instrumentalities  employed,  both  by  the  judges  and 
lawyers,  to  aid  them  in  their  duties,  many  thousands 
of  volumes  of  Reports  of  previous  proceedings  in  the 
courts  of  various  jurisdictions,  in  recent  and  prior 
times,  and  other  thousands  of  volumes  of  treatises 
professing  to  expound  and  make  known  the  law. 

Looking  at  the  prodigious  amount  of  matter  con- 
tained in  all  these  volumes,  of  what  do  we  find  it  to 
consist  ?  It  consists,  first  and  mainly,  of  statements 
of  the  whole  mighty  multitude  of  the  transactions, 
that  is,  of  the  conduct,  of  men  in  their  relations  and 


68  Law,  Its  Origin 

dealings  with  each  other,  so  far  as  those  transactions 
have  been  made  the  subject  of  controversy  during  a 
period  extending  backwards  for  centuries,  and  of  the 
judgments  of  the  courts  pronounced  thereon;  and, 
secondly,  of  the  statements  of  the  conduct  of  men  in 
their  relations,  not  with  each  other  individually,  but 
with  the  general  body  of  society,  so  far  as  such 
conduct  has  been  challenged  for  illegality,  and  of 
the  judgments  thereon.  The  matter  first  described 
will  be  recognised  as  pertaining  to  what  is  called 
Private  Law,  and  that  secondly  described  as  pertaining 
to  what  is  called  Public  Law. 

Reserving  for  the  moment,  the  consideration  of  the 
matter  falling  under  the  head  of  Public  Law,  and  di- 
recting our  attention  to  Private  Law  alone,  we  find, 
upon  looking  into  the  reasons  given  for  the  particular 
judgments  pronounced  by  the  courts,  that  a  large 
number  of  them  declare  that  the  particular  transac- 
tions described  are  like,  or  substantially  like,  some 
other  transactions  which  had  previously  engaged  the 
attention  of  the  courts  and  had  been  decided  in  a 
particular  way,  and  the  like  decision  is  therefore 
made  in  the  particular  case  under  consideration;  in 
other  words,  the  case  is  decided  by  an  appeal  to  known 
precedent,  or  to  known  precedents.  Now  the  prece- 
dent, or  precedents,  thus  invoked  as  the  ground  of 
decision  we  know  to  have  been,  in  the  first  instance, 
the  approval  and  enforcement  of  some  existing  cus- 
tom of  men  having  no  force  or  authority  except  from 
the  fact  that  it  was  a  custom,  and  therefore  we  per- 
ceive that  the  decisions  made  upon  the  basis  of  prece- 
dents were  really  made  upon  no  other  basis  than  that 


Growth  and  Function  69 

of  authenticated  custom.  The  operation,  therefore, 
of  the  tribunals  has  consisted  simply  in  scrutinising 
the  features  of  the  transactions  and  placing  them  in 
some  already  determined  class  in  which  they  belonged, 
the  judgment  pronounced  being  nothing  but  the  legal 
consequence  of  the  fact  that  they  belonged  to  a  par- 
ticular class. 

Each  of  these  precedents  is,  in  effect,  an  assertion 
that  the  law  arising  upon  a  state,  or  grouping,  of  facts, 
such  as  that  presented  by  the  precedent,  is  what  the 
court  pronounces  it  to  be.  This  state  of  facts  has  been 
determined  either  by  the  agreement  of  the  parties,  as 
where  a  defendant  demurs  to  the  declaration  or  com- 
plaint of  the  plaintiff,  or  where  a  jury  has  found  what 
the  fact  is.  These  various  groupings  of  fact,  thus 
presented  by  the  various  transactions  which  have 
been  drawn  into  question,  we  find,  on  consulting  the 
digests  and  treatises  in  which  they  are  arranged,  to 
be  very  numerous,  and  to  embrace  examples  of  most 
of  the  ordinary  transactions  of  life,  and  as  they  are 
arranged  in  classified  order  in  such  books,  it  is  easy  in 
most  instances  of  dispute  to  find  a  class  of  cases  which 
the  disputed  case  so  nearly  resembles  that  it  is  prop- 
erly disposed  of  at  once  by  declaring  that  the  same 
rule  of  law  applies  to  it  as  that  which  distinguishes 
the  class  to  which  it  belongs,  and,  be  it  observed,  all 
the  particular  cases  fall  under  one  or  the  other  of  two 
ultimate  classes  composed,  the  one,  of  things  ap- 
proved, and  the  other  of  things  condemned,  by  the 
law.  Now  we  find  that  cases  are  continually  occur- 
ring of  transactions  which  appear  to  resemble  in  most 
of  their  features  an  already  established  class,  but 


7°  Law,   Its  Origin 

which  have  some  new  feature  not  belonging  to  such 
class,  and  never  before  presented,  and  which,  it  is 
urged  before  the  court,  calls  for  a  different  disposition. 
Let  us  suppose  that  an  action  is  brought  upon  a  policy 
of  marine  insurance  to  recover  for  the  loss  of  a  ship 
by  a  peril  of  the  sea.  It  is  proved  that  the  insured 
had  private  intelligence  that  there  had  been  very 
heavy  weather  on  the  seas  over  which  his  ship  was 
sailing,  and  that  he  procured  his  policy  without  dis- 
closing his  information.  Now  I  am  speaking  of  pro- 
ceedings in  court  at  the  present  time,  but  I  may 
suppose,  for  the  sake  of  the  illustration,  that  this  was 
the  first  occasion  upon  which  the  effect  of  conceal- 
ment in  the  law  of  insurance  arose.  If  there  had 
never  been  any  custom  that  the  applicant  for  insur- 
ance of  a  marine  risk  disclosed,  at  the  time  of  the 
application,  whatever  knowledge  he  had  of  matters 
material  to  the  risk,  the  defence  of  concealment 
would  have  been  to  no  purpose,  and  the  underwriters 
would  have  been  condemned  to  pay  the  loss ;  but  in 
the  case  supposed,  the  insurer  proves  that  under- 
writers had  so  long  been  in  the  practice  of  asking 
what  knowledge  the  applicant  for  insurance  had 
concerning  the  vessel  he  wished  to  insure,  that  appli- 
cants had  been  in  the  habit  of  communicating  their 
knowledge,  whether  asked  or  not,  and  that  all  under- 
writers acted  upon  the  supposal  that  they  possessed 
all  the  information  the  applicant  had  received. 
The  court  leaves  the  case  to  the  jury  with  the  instruc- 
tion that  if  they  find  that  there  was  a  custom  of 
disclosing  material  facts  such  as  alleged,  they  find  a 
verdict  for  the  defendant,  otherwise  for  the  plaintiff, 


Growth  and  Function  71 

and  this  ruling  is  approved  by  a  court  on  appeal,  and 
a  precedent  is  thus  created  which  will  afterwards  be 
followed.  This  precedent,  it  will  be  observed,  created 
a  new  class.  The  contract  contained  in  the  policy 
belonged  to  the  class  of  actions  approved  by  the  law, 
that  is,  to  the  class  of  contracts,  and  the  obligation 
of  these  rested  upon  no  ground,  originally,  other  than 
that  of  custom.  I  know  of  no  reason  why  men  were 
in  the  first  instance  compelled  to  perform  their  con- 
tracts except  that  such  performance  was  in  accord- 
ance with  custom.  It  has  often  been  said  by  the 
most  approved  writers  that  custom  is  one  of  the 
sources  of  law,  and  indeed  Blackstone  views  the  body 
of  our  unwritten  law  as  being  custom,  or  founded 
upon  custom;  but  the  sort  of  custom  thus  intended 
is  ancient  custom,  reaching  so  far  back  that  its  begin- 
ning is  not  known.  Such  a  limitation  of  custom  in 
the  making  of  law  seems  to  me  to  be  without  founda- 
tion, and  the  object  in  giving  the  last  illustration  is  to 
show  that  present  custom,  provided  it  is  established, 
is  as  efficient  as  if  it  were  centuries  old.  But  I 
must  endeavour  to  make  this  still  more  clear.  Let 
me  take  the  example  of  a  second  succeeding  action 
in  all  respects  like  the  one  just  under  notice,  except 
that  the  information  concealed  was  derived  from 
widespread  public  accounts  of  a  great  hurricane. 
The  underwriter  claims  exemption  from  liability  on 
the  ground  of  concealment,  and  relies  upon  the  de- 
cision made  in  the  former  case.  The  insured  insists 
that  the  former  case  should  not  be  regarded  as  a 
governing  precedent,  for  the  reason  that  this  one 
presents  a  new  feature  which  effectually  distinguishes 


72  Law,  Its  Origin 

and  takes  it  from  the  class  of  contracts  of  insurance 
invalid  because  of  concealment,  or  rather  prevents  it 
from  being  assigned  to  that  class.  He  is  asked  if  he 
has  any  evidence  to  prove  that  it  is  not  customary  to 
disclose  notorious  facts,  and  he  answers  that  he  has 
none;  that  the  question  has  never  before  arisen. 
Here  we  reach  a  very  interesting  point  in  considering 
the  question  what  law  is,  and  where  and  how  it  is 
found,  or,  as  some  say,  made — at  all  events  how  it 
comes  to  be  known.  We  are  at  the  very  bottom  of 
the  matter  and  considering  an  operation  which  is 
going  on  every  day  before  our  eyes  and  subject  to  the 
clearest  observation.  Our  closest  attention  should 
therefore  be  given  to  what  is  really  done.  The  court, 
we  may  suppose  on  appeal,  remarks  that  the  case  is 
novel,  and  must  be  decided  upon  principle — a  vague 
expression,  but  correct  enough.  It  says  it  can  hardly 
see  how  the  underwriter  can  justly  claim  exemption; 
true,  the  assured  failed  to  disclose  his  information, 
but  the  only  effect  of  a  disclosure  would  have  been 
to  give  the  underwriter  knowledge  of  the  peculiar 
peril,  which  knowledge  he  already  had  derived  from 
other  sources ;  he  would  have  taken  the  risk  even  if 
the  disclosure  had  been  made,  and  therefore  he  had 
not  changed  his  condition  in  consequence  of  the  dis- 
closure. For  these  reasons  the  decision  is  against  the 
underwriter.  Was  this  case  decided  by  custom? 
Some  would  say  it  was  not,  because,  avowedly,  there 
was  no  precedent,  which  is  authenticated  custom,  nor 
any  evidence  of  actual  custom  not  to  make  disclosure 
of  notorious  information,  and  they  would  declare  that 
it  was  a  clear  case  where  the  judges  had  made  the  law 


Growth  and  Function  73 

out  of  their  own  heads,  upon  a  simple  consideration 
of  whether  the  failure  to  disclose  was  right  or  wrong. 
That  the  decision  was  based  upon  the  consideration 
whether  that  action  was  right  or  wrong  is,  in  a  sense, 
true;  but  whose  notion  of  right  and  wrong  was  it? 
It  did  not  come  from  on  High.  It  was  not  sought  for 
in  the  Scriptures,  or  in  any  book  on  ethics.  The 
judges  in  considering  whether  the  act  was  right  or 
wrong  applied  to  it  the  method  universally  adopted 
by  all  men ;  they  judged  it  by  its  consequences;  they 
considered  that  the  underwriter,  in  all  probability, 
and  therefore  presumably,  knew  of  the  special  peril, 
unless  he  was  utterly  negligent  of  his  business,  which 
could  not  be  supposed;  that  therefore  he  had  lost 
nothing  by  the  act,  nor  in  any  manner  changed  his 
position.  If  we  went  no  further  it  would  be  manifest 
that  custom  decided  the  case,  for  to  determine  whether 
it  was  right  or  wrong  by  the  customary  modes  of  deter- 
mining right  and  wrong  is  to  determine  it  accord- 
ing to  custom.  The  court,  indeed,  declared  that  its 
decision  was  made  upon  principle;  but  what  is  meant 
by  this?  What  is  the  import  of  this  word  "princi- 
ple"? It  has  various  meanings,  but  as  here  em- 
ployed it  denotes  a  proposition  very  widely  true,  and 
the  truth  of  which  is  universally  admitted.  The 
court  in  this  case  judged  of  the  character  of  the  act  of 
concealment  as  we  all,  from  the  very  constitution  of 
our  nature,  judge  of  all  conduct,  by  its  consequences. 
It  found  that  the  underwriter  had  suffered  no  harm 
in  consequence  of  the  concealment,  because  he  would 
have  taken  the  risk,  even  if  the  knowledge  had  been 
disclosed,  and  that  it  was  a  principle  of  law  that  a 


74  Law,  Its  Origin 

man  could  not  fairly  complain  of  the  act  of  another 
unless  he  had  suffered  injury  from  it;  but  this  was  a 
principle  of  law  only  because  it  accorded  with  the 
universal  custom  of  men.  In  the  view  of  logic  the 
method  by  which  the  conclusion  is  reached  is  by  first 
affirming  that  one  can  make  complaint  of  the  action 
of  another  only  when  he  is  injured  by  it.  This  is 
dividing  all  human  actions  into  two  classes,  those 
which  injure  and  those  which  do  not  injure  others. 
The  next  step  is  to  affirm  that  this  particular  act  of 
concealment  did  not  injure  and  therefore  does  not 
belong  to  the  class  of  acts  which  can  be  made  ground 
of  complaint.  The  final  proposition  is,  that  an  act 
by  one  of  the  parties  to  a  contract  which  cannot  be 
made  a  ground  of  complaint  by  the  other  cannot  be 
used  by  such  other  to  relieve  him  from  the  obligation 
of  the  contract.  This  intellectual  process  is  the  em- 
ployment of  what  is  called  the  reason,  and  has  been 
sometimes  supposed  to  be  peculiar  to  the  law.  This 
is  really  why  Cicero  pronounces  the  law  to  be  right 
reason — recta  ratio — existing  from  eternity,  coeval 
with  the  Divine  mind,  but  it  belongs  no  more  to  the 
law  than  to  any  other  branch  of  intellectual  activity. 
It  does,  indeed,  exist  from  all  eternity,  or  at  least 
ever  since  man  existed,  for  it  indicates  the  mode,  and 
the  only  mode,  in  which  the  human  mind  acts  when 
it  engages  in  reasoning.  It  observes  the  conse- 
quences of  acts,  and  places  them  in  different  classes 
according  to  their  respective  consequences,  which  con- 
sequences are  the  qualities  of  the  acts.  This  is  what 
mere  children  begin  to  do,  and  the  mightiest  scien- 
tific mind  does  but  little  else. 


Growth  and  Function  75 

I  dwell  with  greater  minuteness  on  the  proceed- 
ings of  courts  at  the  present  time;  because  the  techni- 
cal language  in  which  they  are  conducted  tends  to 
keep  out  of  sight  the  real  grounds  upon  which  they 
proceed.  It  will  not  be  a  useless  repetition,  there- 
fore, to  employ  additional  examples  to  illustrate  and 
confirm  the  truth  that  present  custom  constitutes 
the  guide  of  action  in  all  cases  depending  upon  the 
unwritten  law.  We  may  take  the  case  in  which  the 
plaintiff  seeks  to  recover  a  piece  of  land  to  which  he 
claims  title.  He  produces  a  deed,  and  the  question 
is  whether  the  language  of  that  instrument  is 
sufficient  to  transfer  the  title.  It  therefore  turns 
upon  the  interpretation  of  that  instrument.  The 
court  decides  in  favour  of  the  plaintiff  on  the 
ground  that  the  language  employed  in  the  deed, 
according  to  the  ordinary  use  of  language,  is  sufficient 
to  effect  a  passage  of  the  title.  This  is  the  rule 
observed  in  the  interpretation  of  all  written  docu- 
ments, and  thus  we  perceive  that  that  important 
branch  of  the  law  is  but  an  enforcement  of  present 
custom.  Whenever  the  question  is  as  to  the  mean- 
ing of  writing,  custom  determines  it. 

Take  the  case  of  an  action  upon  a  promissory  note 
where  the  defence  is  that  the  note  was  given  for  a 
particular  purpose,  and  was  without  other  considera- 
tion, and  that  the  person  to  whom  it  was  given  per- 
verted it  from  the  intended  purpose  to  another  user 
and  that  the  plaintiff  when  he  acquired  it  had  notice 
of  the  special  purpose  for  which  the  note  was  given. 
There  is  much  contradictory  evidence,  let  us  suppose, 
concerning  the  way  in  which  the  plaintiff  came  into 


76  Law,  Its  Origin 

possession  of  the  note,  and  the  judge  leaves  the  case 
to  the  jury  with  the  instruction  that  if  they  should 
find  that  the  plaintiff  came  by  the  note  in  the  ordi- 
nary course  of  business,  without  notice  and  for  value, 
he  is  entitled  to  a  verdict  in  his  favour.  Present 
custom  is  here  a  turning-point  of  the  case.  Again: 
a  husband  defends  an  action  brought  against  him  for 
dresses  furnished  to  his  wife,  on  the  ground  that  they 
are  excessive  and  extravagant  beyond  all  reason,  and 
the  court  leaves  the  case  to  the  jury  with  the  direc- 
tion to  find  a  verdict  for  the  plaintiff,  provided  they 
are  of  the  opinion  that  the  goods  furnished  were  such 
as  were  customarily  worn  and  used  by  women  of  a 
station  in  life  such  as  the  defendant's  wife.  Custom 
thus  supplies  the  rule  by  which  the  liability  of  the 
husband  is  regulated,  and  the  same  is  the  case  with 
the  liability  of  an  infant. 

Take  an  instance  from  the  largest  class  of  cases 
which  now  engages  the  attention  of  courts,  that  in 
which  the  plaintiff  makes  a  claim  grounded  on  an 
assertion  of  negligence  on  the  part  of  the  defendant, 
and  it  becomes  necessary  for  the  court  to  instruct  the 
jury  concerning  the  nature  of  negligence  and  to  lay 
down  the  rule  of  law  for  their  guidance.  Negligence 
will  be  defined  as  "the  omission  to  do  something 
which  a  reasonable  man,  guided  by  those  considera- 
tions which  ordinarily  regulate  the  conduct  of  human 
affairs,  would  do,  or  doing  something  which  a  pru- 
dent and  reasonable  man  would  not  do."1  Now  what 
is  meant  by  a  "  reasonable ' '  man  ?  It  is  a  man  whose 

1  Alderson,  B.,  in  Blythe  vs.  Birmingham  Water  Works  Co.  8  Exc., 
781. 


Growth  and  Function  77 

conduct  is  guided  by  what  is  called  reason.  But 
what  is  reason  in  the  matter  of  conduct?  It  is  the 
observation,  common  with  all  men,  of  the  conse- 
quences of  conduct  and  the  government  of  future 
conduct  in  accordance  with  the  teaching  of  such  obser- 
vation. What  are  the  "considerations  which  ordi- 
narily regulate  the  conduct  of  human  affairs"  here 
spoken  of  ?  They  are  that  men  should  so  act  in  rela- 
tion to  others  as  not  to  justify  their  displeasure  or 
resentment,  and  the  fact  that  if  men  act  according  to 
the  fair  expectations  of  others,  they  will  not  awaken 
displeasure,  and  that  if  they  follow  ordinary  custom 
they  will  be  secure  from  harm.  What  a  judge  really 
says  to  a  jury,  therefore,  when  he  instructs  them  in  a 
negligence  case  that  the  defendant  was  bound  to  do 
all  those  things  ' '  which  a  reasonable  man,  guided  by 
those  considerations  which  ordinarily  regulate  the 
conduct  of  human  affairs,  would  do,  "is  that  he  was 
bound  to  act  according  to  custom.  All,  laymen  as 
well  as  lawyers,  would  feel  if  a  judge  should  instruct 
a  jury  that  the  defendant  was  bound  to  take  precau- 
tions greater,  or  less,  than  are  usually  taken  in  a  case 
such  as  that  upon  trial,  that  the  law  had  been  incor- 
rectly laid  down. 

The  question  will  arise  with  those  to  whom  these 
views  are  for  the  first  time  presented,  how  the  citizen 
is  to  inform  himself  of  customs  which  he  is  required 
to  obey,  and  how  judges  themselves,  in  the  absence  of 
precedent,  find  out  what  custom  is.  A  large  part 
of  the  answer  is  that  every  one  acquires  a  knowledge 
of  custom  as  fast  as  there  is  need  of  having  the  know- 
ledge. A  man  can  hardly  live  in  society  without 


78  Law,  Its  Origin 

knowing  how  men  act — that  is,  what  custom  is.  He 
knows  what  to  do  and  what  not  to  do,  as  well  as  what 
to  wear  and  what  not  to  wear.  Custom  is  of  all 
things  the  one  most  universally  known.  No  one 
needs  to  be  told  that  he  must  not  injure  the  person  of 
another,  or  take  his  property,  or  violate  his  engage- 
ments when  he  has  induced  another  to  part  with  some- 
thing upon  the  strength  of  them. 

Of  course  there  are  ca^es,  absolutely  very  numer- 
ous, but  small  when  the  whole  body  of  human  activ- 
ity is  considered,  in  which  men  honestly  differ  as  to 
what  ought  to  be  done,  that  is,  as  to  what  cus- 
tom requires,  and  other  cases,  also  very  numerous,  in 
which  men  refuse  or  neglect  to  do  what  they  well 
know  that  they  ought  to  do.  When  a  man  is  hon- 
estly ignorant  concerning  any  matter,  the  natural 
recourse  is  to  some  person  or  persons  likely  to  be 
better  informed  than  himself.  In  the  earliest  and 
simplest  societies  we  know  anything  about,  if  there 
was  a  dispute  between  different  members,  and  they 
cared  to  settle  it  without  fighting,  they  called  in 
the  aid  of  the  oldest  and  most  respected  members  of 
the  tribe,  who  had  had  the  largest  experience  in  life, 
and  who  enjoyed  the  reputation  of  taking  just  views 
of  things.  We  do  the  same  thing  to-day.  The 
judges  of  our  courts  fill  the  place  occupied  by  the 
seniors  of  the  savage  tribe.  This  is  the  answer  given 
by  Blackstone.  He  says,  after  assigning  established 
custom  as  one  of  the  foundations  of  the  common  law 
(he  should  have  made  it  the  only  foundation)  : 

But  here  a  very  natural,  and  very  material,  question  arises: 
how  are  these  customs  and  maxims  to  be  known,  and  by 


Growth  and  Function  79 

whom  is  their  validity  to  be  determined?  The  answer  is,  by 
the  judges  in  the  several  courts  of  justice.  They  are  the 
depositaries  of  the  laws,  the  living  oracles,  who  must  decide 
in  all  cases  of  doubt,  and  who  are  bound  by  an  oath  to  decide 
according  to  the  law  of  the  land.  Their  knowledge  of  that 
law  is  derived  from  experience  and  study;  from  the  'viginti 
annorum  lucubrationes'  which  Fortescue  mentions;  and  from 
being  long  personally  accustomed  to  the  judicial  decisions  of 
their  predecessors.1 

But  the  law  needs  not  only  to  be  declared,  but, 
where  necessary,  it  is  to  be  enforced,  and  part  of  the 
constitution  of  a  court  is  the  presence  of  one  of  its 
own  officers  or  an  officer  of  the  law,  the  sheriff,  who 
may  command  the  whole  power  of  the  State  to  execute 
the  mandate  of  the  court.  The  judge  to  whom  is 
intrusted  the  office  of  declaring  what  custom  is,  finds 
out  the  fact,  for  the  most  part,  in  the  same  way  that 
other  men  do,  by  his  senses ;  but  this  means  is  supple- 
mented with  him  by  his  knowledge  of  the  work  of  his 
predecessors.  What  makes  the  accomplished  law- 
yer more  fit  than  other  men  for  the  work  of  ascer- 
taining and  declaring  custom,  is  the  fact  that  custom 
is  a  government  of  conduct  according  to  its  conse- 
quences. This  is  the  proper  study  of  the  lawyer,  if  he 
makes  the  best  use  of  his  time.  The  reports,  which 
are  the  books  containing  all  the  disputed  cases  of 
conduct  in  the  past,  and  the  affairs  of  the  present  day, 
are  supposed  to  be  thoroughly  known  by  him.  The 
judge  permits  no  witness  to  be  called  to  enlighten 
him  as  to  what  custom  is  (I  do  not  speak  of  particular 
customs) .  He  is  required  to  take  judicial  notice  of  it ; 

1  Blackstone,  book  i.,  p.  69. 


8o  Law,  Its  Origin 

but  the  word  judicial  might  be  omitted,  for  every  one 
in  the  ordinary  business  of  life  is  required  to  take  the 
same  notice  at  his  peril.  And  here  we  have  another 
proof  that  custom  is  law,  for  how  could  men  be  justly 
required  to  obey  rules  which  they  had  not  the  easy 
means  of  knowing  ? 

But  if  the  law  laid  down  by  the  enlightened  tribu- 
nals of  the  present  day  be  nothing  but  custom,  what, 
it  may  be  asked,  is  meant  when  courts  declare  cer- 
tain customs  bad,  and  disallow  them  ?  It  is  true  that 
language  like  this  is  often  employed,  but  the  phrase- 
ology is  misleading.  There  are  particular  customs, 
that  is,  customs  prevailing  in  certain  localities,  or  in 
certain  branches  of  business.  These  are  allowed, 
when  they  are  allowed  at  all,  for  the  same  reason  that 
custom  generally  is  taken  to  be  the  law,  that  is,  be- 
cause the  particular  conduct  in  question  has  been 
governed  by  it.  But  the  question  always  arises 
whether  the  particular  custom  relied  upon  finds  a 
place  in  the  large  category  of  universal  custom.  If 
it  be  found  to  have  any  element  taking  it  out  of  that 
category,  it  is  not  really  an  instance  of  custom,  but 
is  a  departure  from  custom.  It  is  not  enough  to 
make  conduct  customary  that  the  instances  of  it  are 
frequent  and  numerous.  Thefts  are  extremely  fre- 
quent, but  they  are,  like  all  crimes,  departures  from 
custom — mere  bad  practices  which  true  custom  con- 
demns. Let  it  be  supposed  that  a  milkman  brings 
an  action  against  his  customer  for  the  price  of  milk 
furnished  to  him,  and  the  customer  asserts  and  proves 
as  a  defence  to  the  action,  in  whole  or  in  part,  that 
the  milk  was  watered.  The  milkman  seeks  to  meet 


Growth  and  Function  81 

this  defence  by  asking  to  be  allowed  to  prove  that 
milkmen  generally  water  their  milk,  and  that  every 
one  knows,  or  has  reason  to  suspect,  such  to  be  the 
custom.  If  the  judge  should  ask  him  if  he  proposed 
to  prove  that  he  and  all  other  milkmen  openly 
watered  their  milk  before  the  eyes  of  their  customers, 
he  could  scarcely  answer  in  the  affirmative.  The  act 
was  done  in  secret  with  the  view  of  concealing  it  from 
customers.  Now  the  sale  of  milk  is  but  an  instance 
of  a  contract,  and  the  general  custom  is  that  con- 
tracts are  made  and  performed  openly  and  in  good 
faith.  The  distinguishing  characteristic  of  custom- 
ary conduct  is  that  it  is  what  all  parties  affected  by  it 
might  fairly  expect,  and  this  at  once  stamps  the  water- 
ing of  milk  as  a  violation  of  custom — a  mere  bad  prac- 
tice which  might  with  propriety  be  treated  as  a  crime. 


LECTURE  IV. 

CONTINUING  our  scrutiny  of  this  great  history 
of  the  treatment  of  human  conduct  by  the 
enlightened  judicial  tribunals,  we  find  that  transac- 
tions have  been  brought  before  them  which  are  in  all 
substantial  respects  the  same  with  some  one  or  more 
previously  decided,  and  yet  one  of  the  parties  is  not 
satisfied  with  that  decision,  and  insists  it  was  wrong, 
and  it  appears  from  the  discussions  that  the  previous 
decisions  have  not  been  acquiesced  in  generally,  and 
that  transactions  of  various  kinds  are  continually 
occurring  not  in  harmony  with  the  decisions — that  is, 
that  human  conduct  does  not  actually  govern  itself 
in  accordance  with  them.  In  such  cases  we  find 
that  the  courts  have  re-examined  the  prior  decision, 
or  decisions,  which  had  thus  been  questioned,  and 
have  sometimes  declared  that  they  were  erroneous 
and  would  no  longer  be  followed,  and  if  we  look 
closely  to  see  in  what  the  confessed  error  consisted  we 
shall  find  that  it  was  in  a  wrong  classification  of  the 
transaction  adjudicated  upon — that  is  to  say,  that  it 
was  classified  as  being  against  the  approved  customs 
of  society  when  in  fact  it  was,  upon  a  just  view,  in  ac- 
cordance with  them,  or  as  being  in  accordance 
with  them  when  it  was  in  fact  against  them.  Here 
we  observe  two  things:  first,  that  human  conduct 

82 


Law:  Origin,  Growth,  and  Function        83 

follows  its  own  inherent  laws  uncontrolled,  except  in 
minor  matters,  even  by  the  deliberate  judgments  of 
courts,  and  that  if  some  piece  of  conduct  really  in 
accordance  with  custom  is  declared  by  the  courts  to 
be  otherwise,  society  will,  if  the  matter  be  one  of 
grave  importance,  pursue  its  own  course,  regardless 
of  the  decision.  It  will  follow  the  fundamental  law 
which  governs  conduct,  namely,  that  custom  is  the 
controlling  power.  In  the  next  place,  we  shall  ob- 
serve that  the  courts  themselves  recognise,  tacitly, 
at  least,  this  fact,  and  when  they  perceive  that  a  rule 
of  law  as  laid  down  by  them  is  not  generally  ac- 
cepted, that  is,  that  it  fails  to  control  conduct,  they 
change  the  rule.  Now,  the  real  thing  to  which  the 
courts  look  for  a  guide  in  such  emergencies  is  the 
actual  customs  of  society.  If  they  see  that  conduct 
which  they  once  pronounced  wrong  continues  to  be 
repeated,  not  in  exceptional  instances  merely,  but 
generally,  they  see  that  such  conduct  is  one  of  the 
ways  of  society;  that  the  business  of  life  could  not  be 
conducted  in  the  way  in  which  it  actually  is  conducted 
except  upon  the  assumption  that  such  conduct  is 
right ;  in  other  words,  that  it  is  actually  in  accordance 
with  custom,  and  that  their  previous  classification  of 
it  as  otherwise  was  erroneous.  We  have  here  a  fur- 
ther proof  that  a  judicial  precedent  is  nothing  but 
a  supposed  custom  authenticated  by  the  public  of- 
ficial stamp ;  that  such  stamp  may  be  placed  errone- 
ously, and  that  in  such  cases  it  loses  its  power  and 
authority.  If  a  base  coin  were,  by  error,  to  receive 
the  public  stamp  declaring  it  to  contain  so  much  gold, 
that  stamp  would  be  ineffectual  to  give  it  value  after 


84  Law,  Its  Origin 

the  truth  had  been  discovered.  A  judicial  precedent 
is  not  law  per  se,  but  evidence  of  it  only.  The  real 
law  is  custom. 

I  must  emphasise  a  principal  feature  observable 
throughout  the  proceedings  of  judicial  tribunals  in 
the  enlightened  stage  under  consideration.  This  is 
that  they  are  engaged  in  a  conscious  effort  to  admin- 
ister true  justice;  and  that  they  seek  to  accomplish 
this  by  studying  the  features  of  the  particular  trans- 
actions brought  before  them  and  assigning  them  to 
one  or  another  of  the  vast  multitudes  of  classes  or 
sub -classes  which  make  up  the  structure  of  the  lawr 
or  adding  to  that  structure  by  forming  new  classes,  or 
correcting  it  by  a  re-formation  of  previous  classifica- 
tions. This  is  the  same  kind  of  work  which  is  per- 
formed in  astronomy,  geology,  ornithology,  and  all 
other  sciences.  The  law  thus  appears  in  its  true 
character  as  an  Inductive  Science.  The  difference 
between  it  and  other  sciences  is  that  the  classifica- 
tions of  the  latter  are  subsidiary  to  the  purpose  of 
arranging  knowledge  into  orderly  form,  with  a  view 
to  its  better  comprehension  and  to  its  further  in- 
crease ;  while  in  the  law  the  classifications  are  made, 
not  for  the  mere  purposes  of  scientific  knowledge,  but 
to  compel  men  to  do  or  to  suffer  what  it  is  right  that 
they  should  do  or  suffer.  This  classification,  how- 
ever, made  for  the  practical  purposes  of  life,  is  really, 
at  the  same  time,  the  true  one  for  scientific  purposes. 

I  must  also  observe  here  that  Law  in  this,  its  scien- 
tific aspect,  embraces  only  that  part  of  law  which 
consists  of  the  enforced  customs  of  society — that  is, 
unwritten  law,  and  that  the  operation  of  this  law  is 


Growth  and  Function  85 

in  large  measure,  though  not  wholly,  confined  to  the 
province  of  Private  Law,  that  is,  the  law  which  gov- 
erns the  ordinary  private  transactions  of  men  with 
each  other.  It  is  the  law  for  which  the  Roman  word 
jus  is  the  best  expression.  And  it  is  well  to  keep 
constantly  in  mind  that  this  law,  being  tantamount 
to  the  customs  enforced  by  society,  is  an  existing  fact, 
or  body  of  facts,  and  that  the  courts  do  not  make  it, 
or  pretend  to  make  it,  but  to  find  and  ascertain  it, 
acting  upon  the  true  assumption  that  it  already 
exists. 

Before  passing  from  the  evidences  which  show  that 
in  all  stages  of  social  progress  the  private  law  is  iden- 
tical with  custom,  I  must  call  attention  to  a  striking 
feature  observable  in  the  condition  of  a  subject 
nation  which  has  been  conquered  by  another  posses- 
sing a  different  law.  It  may  be  the  desire  of  the 
conquering  nation  to  supplant  the  law  of  the  people 
which  it  has  subdued  by  the  introduction  of  its  own, 
and  yet  no  instance  can  be  found  in  which  this  has 
been  done.  The  Romans  did  not  abrogate  the  exist- 
ing law  of  the  numerous  nations  over  whom  they 
imposed  their  political  dominion.  The  Western 
Barbarians  did  not  uproot  the  law  they  found  pre- 
vailing in  the  Roman  provinces  which  fell  under 
their  sway.  The  German  conquerors  of  England 
did,  indeed,  nearly  destroy  the  ancient  laws  of  the 
Britons,  but  not  until  they  had  as  nearly  extermin- 
ated the  Britons  themselves.  The  United  States 
adopted  and  enforced  in  their  various  conquests  in 
Mexico,  Porto  Rico,  and  the  Philippine  Islands,  the 
laws  and  customs  of  the  native  peoples.  An  excep- 


86  Law,  Its  Origin 

tion  is  to  be  made  in  respect  to  such  laws  of  the  con- 
quered nations  as  are  in  their  nature  inconsistent 
with  the  maintenance  of  the  new  Sovereignty  and  to 
such  laws  as  the  conqueror  may  find  it  necessary  to 
impose  in  order  to  maintain  his  supremacy;  but 
these  are  public  laws.  The  private  relations  of  the 
conquered  people  with  each  other  remain  subject  to 
the  same  government  as  before.  Accordingly  it  is  a 
principle  of  universal  public  law,  everywhere  recog- 
nised by  courts,  that  in  the  case  of  the  conquest  of  one 
nation  by  another  the  laws  of  the  conquered  nation 
remain  in  force,  except  so  far  as  they  are  inconsist- 
ent with  the  supremacy  of  the  conquering  nation, 
and  so  far  as  the  conquering  nation  has  positively 
substituted  different  rules  in  their  place.  This  is  a 
significant  proof  that  the  private  law  is  self -existent 
and  irrepealable  in  custom. 

I  now  come  to  consider  another  feature  observable 
in  the  proceedings  of  judicial  tribunals  still  under 
consideration,  and  which  forms  a  large  and  interest- 
ing figure  in  those  proceedings.  We  find  many  trans- 
actions considered  and  adjudicated  upon  by  the 
courts  in  which  their  action  is  determined,  not  by 
reference,  in  the  first  instance  at  least,  to  preced- 
ent or  to  custom,  but  by  direct  reference  to  what  the 
legislative  power  has,  by  some  written  enactment, 
commanded  or  prohibited  to  be  done,  and  we  find, 
consequently,  that  human  conduct  is  governed,  to 
some  extent,  not  by  custom,  but  by  the  expressed 
will  of  the  State — that  is,  by  Legislation.  It  is  obvi- 
ous that  these  two  methods  are  radically  different. 
When  courts  apply  the  law  founded  upon  custom, 


Growth  and  Function  87 

they  do  not  make  rules.  They  find  rules  already  ex- 
isting, unconsciously  made  by  society,  the  product,  as 
it  were,  of  its  life;  but  the  written  laws  which  they 
enforce  are  rules  consciously  made  by  men  clothed  with 
the  legislative  power.  I  have  hitherto  purposely 
endeavoured  to  leave  Legislation  out  of  view  in  order 
that  we  might  contemplate  custom  and  its  opera- 
tion upon  human  conduct,  uninfluenced  by  the  con- 
sideration of  other  causes  affecting  it.  I  did,  indeed, 
find  it  necessary  to  treat  briefly  of  the  first  employ- 
ments of  writing  in  the  making  of  laws,  in  order  to 
show  that  the  omnipotence  of  custom  as  the  guide  of 
conduct  was  not  to  be  imputed  to  ignorance  of  the  art 
of  writing,  and  for  that  purpose  spoke  with  some  detail 
of  the  early  employment  of  writing  among  the  Greeks 
and  Romans,  but  now  that  we  find  in  scrutinising  the 
proceedings  of  courts  in  enlightened  society  that  there 
is  a  much  larger  appearance  of  written  or  enacted  law, 
some  greater  and  closer  attention  must  be  given  to  it. 
What  the  real  nature  of  Legislation  is,  beyond  the 
fact  that  it  is,  in  form,  in  writing,  and  purports  to 
express  the  command  of  the  sovereign  power,  and  how 
far  it  is  wise  or  expedient  that  we  should  attempt  to 
govern  conduct  through  its  instrumentality,  are  in- 
teresting questions  which  I  shall  hereafter  discuss. 
Thus  far  I  have  been  confining  my  attention  to  the 
causes  which,  in  point  of  fact,  have  governed  and  do 
govern  conduct.  I  am  still  prosecuting  that  inquiry, 
and  now  come  to  consider  to  what  extent  Legislation 
has,  in  different  places  and  in  different  ages,  been, 
as  a  matter  of  fact,  the  source  of  rules  for  the  govern- 
ment of  conduct. 


88  Law,  Its  Origin 

We  found,  in  considering  the  first  employments  of. 
writing  in  the  making  of  laws  of  which  history  gives 
us  any  considerable  knowledge,  namely,  the  laws  of 
Solon  in  Athens  and  the  XII  Tables  in  Rome,  that 
these  acts  of  legislation  were  not  intended  to  super- 
sede the  previous  customary  laws  of  those  States,  but 
to  furnish  better  methods  of  executing  those  laws, 
and  to  effect  an  adjustment  of  internal  political  dis- 
putes which  had  arisen  between  different  classes  of 
citizens;  in  other  words,  that  the  object,  substance, 
and  nature  of  those  written  laws  was  not  juristic,  but 
political.  I  shall  briefly  glance  at  the  subsequent 
employment  of  writing  for  the  purpose  of  law-making 
in  the  early  history  of  different  countries  down  to  and 
including  the  present  time. 

The  first  of  these  subsequent  employments  is  that 
presented  by  what  are  called  the  Codes  of  the  Bar- 
barians. They  were  promulgated  at  various  times 
during  a  long  period  covering  parts  of  the  fifth  and 
sixth  centuries  of  the  Christian  era;  but  the  occas- 
ions which  produced  them,  and  the  purposes  they 
were  designed  to  serve,  and  their  contents,  are  so  far 
similar  as  to  justify  their  reference  to  a  single  class. 
In  order  to  gain  even  the  most  general  knowledge  of 
the  nature  of  these  laws,  which  indeed  is  all  that 
is  requisite  for*  our  present  purpose,  it  is  neces- 
sary to  glance  at  the  political  and  social  condition 
of  Western  Europe  at  the  times  when  they  were 
promulgated  The  martial  valour  of  the  Romans 
and  their  ambition  for  extensive  empire  had,  at  the 
time  of  Augustus,  brought  under  their  dominion 
the  greater  part  of  the  known  world.  His  advice 


Growth  and  Function  89 

to  his  countrymen  to  check  the  career  of  conquest 
and  to  consolidate  the  vast  possessions  they  had  won, 
was  accepted  by  them,  and  they  displayed  a  genius 
in  the  arts  of  pacification  quite  as  conspicuous  as 
their  renown  in  war.  They  sent  out  colonists, 
especially  through  Italy,  Gaul,  and  Spain,  who 
mingled  with  the  native  inhabitants,  carried  with 
them  habits  of  industry,  gradually  induced  the  na- 
tives to  devote  themselves  to  agriculture,  the  arts, 
and  commerce,  and  gave  them  an  improved  admin- 
istration of  justice  and  better  local  governments. 
Moreover,  they  did  not  attempt  the  impossible  task 
of  violently  substituting  their  own  laws  in  place  of 
the  native  customs,  but  allowed  the  latter  to  be  in 
large  measure  retained.  They  sought  in  other  ways 
to  attach  their  new  subjects  to  their  authority,  com- 
mitted to  their  hands  many  of  the  functions  of  local 
government,  encouraged  them  to  enlist  in  the  Roman 
armies,  and  finally  bestowed  upon  them  the  proud 
title  of  Roman  citizens,  with  all  the  privileges  per- 
taining to  it.  There  was,  however,  at  all  times,  a 
gentle  pressure  for  the  adoption  of  the  Roman  law, 
and  its  vastly  superior  adaptation  to  the  purposes 
of  a  people  seeking  to  acquire  the  arts  and  blessings 
of  civilisation  served  to  facilitate  its  reception. 

Under  these  influences  the  Roman  provinces, 
especially  in  Europe,  made  in  the  course  of  five  cen- 
turies from  the  time  of  their  subjugation  great  ad- 
vances in  civilisation,  wealth,  and  knowledge.  Hun- 
dreds of  cities,  many  of  them  large  and  populous, 
arose,  great  accumulations  of  wealth  were  gathered 
and  the  magnificence  of  the  imperial  city  was 


90  Law,  Its  Origin 

emulated  in  baths,  temples,  and  forums.  Schools 
were  established,  and  some  of  the  great  names 
in  the  classic  literature  of  Rome  were  those  of  pro- 
vincials. Seneca,  for  instance,  was  a  Spaniard. 

But  a  great  peril  at  all  times  threatened  the  secur- 
ity of  these  nourishing  provinces.  The  vast  regions 
lying  on  the  North  and  East  were  inhabited  by  rude 
barbarians,  warlike  and  adventurous,  ready  to  en- 
gage in  any  arduous  enterprise  promising  the  rewards 
of  plunder  and  spoil.  To  repel  the  inroads  of  these 
terrible  warriors  the  provinces  had  no  military 
strength  of  their  own.  They  were  not  permitted  to 
indulge  the  military  spirit  and  to  raise  and  maintain 
armies  under  their  own  control  with  which  to  resist 
invasion.  There  was  too  much  danger  that  these 
might  be  employed  against  the  imperial  authority. 
Rome  herself  undertook  to  defend  her  provinces,  and 
this  task  was  for  centuries  efficiently  performed  by 
her  disciplined  legions  stationed  along  the  whole 
frontier.  Upon  the  fall  of  the  Empire  this  safeguard 
melted  away,  and  the  barrier  being  removed,  the 
barbarians  broke  in  upon  all  sides.  There  being  no 
military  power  to  expel  them,  and  no  inducement  to 
voluntary  return,  they  gave  terms  to  the  vanquished 
inhabitants,  established  themselves  in  permanent 
occupancy  of  the  territories  they  had  conquered,  and 
with  no  further  enemies  to  subdue,  they  gradually 
settled  into  peaceful  pursuits,  together  with  the 
peoples  they  had  conquered,  and  began  their  march 
along  the  pathway  of  civilisation  and  progress 
which  those  peoples  had  before  trodden  after  their 
subjugation  by  the  Romans. 


Growth  and  Function  91 

And  now  there  arose  some  anomalous  legal  con- 
ditions. Similar  ones  may  have  been  exhibited 
before  and  since,  when  one  nation  has  been  subdued 
by  another,  but  never,  in  known  history,  upon  a 
scale  so  conspicuous.  Here  were  the  original  inhab- 
itants of  the  conquered  provinces  living  under  a 
modified  Roman  law,  which  tolerated  the  existence, 
to  some  extent,  of  the  prior  customs  of  the  provinces. 
Over  them  came  the  barbarians  with  their  rude 
tribal  organisations  and  customs.  They  could  not, 
if  they  would,  abrogate  the  law  under  which  the 
people  they  had  conquered  were  living.  This  law 
could  not  be  at  once  abrogated  without  destroying 
the  customs  which  it  represented  and  enforced. 
As  we  have  already  seen,  customs  can  not  be  de- 
stroyed at  a  stroke.  To  change  them  is  a  slow  and 
gradual  work.  Nor,  probably,  did  the  barbarians 
desire  wholly  to  abrogate  them.  They  wished  to  make 
friends,  not  enemies,  of  the  people  among  whom 
they  intended  to  dwell  permanently,  and  in  no  way 
could  they  better  effect  this  purpose  than  by  suffering 
them,  so  far  as  possible,  to  retain  their  laws  and 
customs.  Still  less  could  they  renounce  their  own 
laws.  The  attachment  of  their  own  followers  to 
their  customs  was  as  strong  as  that  of  the  native 
people  to  theirs.  Necessity,  as  well  as  policy,  pointed 
to  the  expedient  of  allowing  both  systems  to  stand 
side  by  side  to  such  an  extent  as  to  permit  the  con- 
quered populations  to  have  the  benefit  of  their  own 
laws  and  customs,  so  far  as  concerned  transactions 
between  themselves,  while  the  barbarians  might 
assert  theirs  wherever  their  interests  and  supremacy 


9 2  Law,  Its  Origin 

were  concerned.  This  expedient  was  adopted,  or, 
rather,  it  came  about  naturally,  of  necessity;  but 
to  carry  it  into  better  effect  it  was  needful  to  pro- 
mulgate the  laws  of  the  Barbarians  in  order  that  the 
conquered  peoples  might  be  apprised  of  what  they 
were  to  obey  when  the  two  systems  might  happen  to 
come  into  conflict.  The  political  power  would  be 
in  the  hands  of  the  Barbarians,  and  through  this 
they  would  be  enabled  to  assert  the  supremacy  of 
their  own  customs  whenever  occasion  might  require. 
Prior  to  this  time  and  before  they  started  upon  their 
career  of  conquest,  they  were  governed  by  the  un- 
written rules  of  conduct;  their  affairs  were  dis- 
cussed and  settled  in  councils  composed  of  the  free- 
men of  the  tribes.  Their  kings  were  elected  at  these, 
and  at  these  were  determined,  by  the  rude  clashing 
of  their  weapons,  the  questions  of  war  and  peace, 
and  a  rude  justice  was  administered.  The  purpose 
of  the  promulgation  of  the  Barbarian  Codes  was  to 
settle  the  conflict  thus  arising  between  different 
systems  of  custom,  and  they  gave  rise  to  the  anomaly 
of  two  systems  of  law  co-existing  with  each  other, 
one  territorial  in  extent,  and  applicable  to  the  native 
people  inhabiting  the  conquered  territory ;  the  other, 
personal,  applicable  to  the  Barbarians,  and  carried 
with  them  wherever  they  went. 

Among  these  Barbarian  Laws,  and  the  most 
important,  was  the  Code  of  the  Salian  Franks,  a 
powerful  confederacy  of  German  tribes,  who,  with 
their  neighbours,  the  Ripuarian  Franks,  had  re- 
duced substantially  the  whole  of  Gaul  to  subjection 
.and  inaugurated  the  first  dynasty,  the  Merovingian, 


Growth  and  Function  93, 

of  the  French  kings.  Others  were  the  Codes  of 
the  Burgundians,  of  the  Ostrogoths,  the  Visigoths, 
and  the  Alemanni,  and  there  were  still  others. 

The  conflict  between  these  codes  and  the  Roman 
law  of  the  provinces  did  not  prove  so  embarrassing  as 
might  be  supposed.  In  the  case  of  the  rudest  of  the 
Barbarians,  the  Franks  and  the  Burgundians,  the 
characteristics  of  the  provisions  were  that  they  re- 
lated very  largely  to  political  organisations  and  to 
the  crimes  of  violence.  They  fixed  the  weregild,  or 
sum  required  to  be  paid  by  a  man  to  the  kin  of  one 
whom  he  had  slain,  and  corresponding  sums  for 
robbery  and  other  injuries.  Among  violent  and  war- 
like people  having  no  industries,  all  that  is  needed 
is  the  repression  of  those  offences  which  disturb  the 
internal  peace  of  the  tribe.  They  have  no  occasion 
for  resorting  to  a  cultivated  jurisprudence,  and  the 
Barbarians  might  well,  having  the  military  and 
political  supremacy,  insist  upon  the  adoption  of 
these  simple  provisions  for  offences  and  leave  the 
regulation  of  the  other  conduct  of  the  peaceful  native 
inhabitants  to  that  system  which  was  already  per- 
forming that  function. 

The  aspect,  therefore,  which  these  conquered 
countries  exhibited  was  that  of  rude  barbarians 
living  among  peaceful  inhabitants,  and  each  under 
laws  of  their  own,  growing  out  of,  and  fitted  to,  their 
respective  characteristics  and  with  growing  internal 
harmony. 

In  the  country  subject  to  the  Franks,  the  Salic  Law  was 
established  for  the  Franks,  and  the  Theodosian  Code  for  the 
Romans.  In  that  subject  to  the  Visigoths  a  compilement  of 


94  Law,  Its  Origin 

the  Theodosian  Code,  made  by  order  of  Alaric,  regulated  dis- 
putes among  the  Romans ;  and  the  national  customs,  which 
Euric  caused  to  be  reduced  to  writing,  determined  those 
among  the  Visigoths.1 

The  pride  of  the  conquerors  was  sufficiently  gratified 
by  the  privilege  which  they  enjoyed,  like  the  posterity 
-of  Mahomet,  of  carrying  their  laws  with  them  wherever 
they  went,  whereas  the  laws  of  the  provinces  re- 
mained local  and  territorial.  The  two  systems  were 
left  to  compete  with  each  other,  and  the  result  of 
the  competition  was  not  doubtful.  The  Barbarians 
themselves,  gradually  changing  their  habits  from 
those  of  warlike  and  predatory  tribes  to  those  of  peace- 
ful and  industrious  citizens,  would  soon  find  that  their 
rude  laws  contained  no  rules  applicable  to  their 
changed  condition,  while  the  Roman  law  of  the  pro- 
vinces, penetrated  by  the  spirit  of  a  jurisprudence  built 
up  by  a  thousand  years  of  civilisation,  embraced  pro- 
visions which  would  justly  regulate  every  transaction 
of  life.  It  was  inevitable  that  in  these  subjugated 
-countries  the  original  inhabitants,  while  receiving 
from  their  conquerors  a  new  infusion  of  independent 
and  martial  feeling,  would  in  their  turn  subdue  the 
ferocity  of  their  masters,  and  allure  them  into  the 
peaceful  paths  of  industrial  advancement.  As  this 
change  progressed,  the  rude  codes  of  the  Barbarians 
would  silently  sink  into  desuetude  and  the  cultivated 
jurisprudence  of  Rome  re-assert  its  supremacy. 

This  cursory  review  of  the  circumstances  attending 
the  promulgation  of  the  Barbarian  Codes  enables  us 
to  perceive  the  purpose  of  this  employment  of 

1  Montesquieu,  Esprit  des  Lois,  vol.  ii.,  book  xxviii.,  ch.  iv. 


Growth  and  Function  95 

writing  in  the  framing  of  laws,  and  we  immediately 
see  that  here  also  it  was  not  juristic  but  political. 
It  was  political  in  the  main,  in  both  the  instances 
we  have  before  considered,  those  of  Athens  and 
Rome ;  but  there  it  was  for  the  purpose  of  re-organ- 
ising the  political  arrangements  in  order  to  reconcile 
internal  conflicts  between  different  classes  of  long 
established  societies,  and  inasmuch  as  those  con- 
flicts in  part  arose  from  dissatisfaction  with  the 
public  administration  of  justice,  the  written  Code, 
especially  in  Rome,  reduced  to  writing  some  of  the 
ordinary  law.  But  the  case  was  otherwise  with  the 
Barbarian  Codes.  There  were  no  internal  dissen- 
sions within  the  bodies  of  the  tribes.  Such  internal 
peace  as  barbarians  can  exhibit  prevailed.  The 
motive  was  in  great  part  to  preserve  for  triumphant 
bands  of  savage  warriors,  in  the  midst  of  peaceful 
provinces  which  they  had  subdued,  their  supremacy 
over  the  vanquished  by  retaining  those  prerogatives 
and  privileges  which  are  becoming  to  conquerors. 
They  were  not  unwilling  that  the  provincials  should 
preserve,  for  the  regulation  of  their  own  affairs,  the 
laws  and  usages  which  then  prevailed  among  them. 
In  some  instances,  indeed,  the  Barbarians  caused 
some  brief  codes  of  Roman  Law  to  be  prepared  for 
their  use;  but  it  was  not  their  purpose  to  subject 
themselves  to  such  laws  and  usages.  To  have  a 
personal  law  which  a  man  can  claim  wherever  he 
goes  is  a  most  conspicuous  mark  of  superiority,  and 
this  prerogative  the  conquerors  chose  to  retain.  A 
permanent  memorial  which  could  at  any  time  be 
appealed  to  was  needed  in  order  to  acquaint  the 


96  Law,  Its  Origin 

I 

vanquished  with  the  conditions  which  their  masters 
chose  to  impose.  This  apparently  anomalous  exist- 
ence of  a  personal  law  with  a  different  territorial 
system  is  well  sketched  by  Messrs.  Pollock  and 
Maitland  in  their  History  of  English  Law : 

As  the  Prankish  realm  expanded,  there  expanded  with  it  a 
wonderful  "system  of  personal  laws."  It  was  a  system  of 
racial  laws.  The  Lex  Sal-lea,  for  instance,  was  not  the  law  of  a 
district;  it  was  the  law  of  a  race.  The  Swabian,  wherever 
he  might  be,  lived  under  his  Alamannic,  or  as  the  expressive 
phrase  tells  us,  he  lived  Alamannic  law  (legem  vivere).  So 
Roman  law  was  the  law  of  the  Romani.  In  a  famous,  if  ex- 
aggerated, sentence  Bishop  Agobard  of  Lyons  has  said  that 
often  five  men  would  be  walking  or  sitting  together  and  each 
of  them  would  own  a  different  law.1 

Turning  now  to  Great  Britain,  we  find  the  first 
known  instances  of  the  employment  of  writing 
for  the  purposes  of  legislation  to  be  of  a  somewhat 
different  character.  The  original  inhabitants  of  the 
island  were  Celts.  The  Roman  conquest,  although 
followed  by  four  centuries  of  occupation,  is  but  an 
episode  in  the  history  of  Great  Britain.  The  occu- 
pation was  confined,  for  the  most  part,  to  fortified 
places  and  their  neighbourhood,  while  the  main 
bulk  of  the  territory  was  still  in  the  hands  of  the 
natives.  The  recall  of  the  Roman  legions  at  the 
downfall  of  the  empire  was  the  signal  for  the  re- 
assertion  by  the  natives  of  their  power.  The  Roman 
inhabitants,  conscious  of  their  inability  to  withstand 
this  pressure,  resorted  to  the  dangerous  expedient 
of  calling  outside  Barbarians  to  their  aid.  Those 

'Pollock  and  Maitland,  (1899)  vol.  i.,  p.  13. 


Growth  and  Function  97 

most  available  for  this  purpose  were  bands  of  free- 
booters from  the  promontory  of  Jutland  who  were 
harrying  the  coasts  of  England  and  France.  They 
defeated  the  British  Barbarians,  and  then  turned 
their  arms  against  the  Romans.  Fresh  bands  from 
their  native  Jutland  and  from  the  neighbouring 
Saxons  poured  in  to  join  them,  and  wars  ensued 
which  ended  in  the  extermination  of  both  Roman 
and  Briton,  and  thenceforth  the  Angles  and  the 
Saxons  were  to  be  the  undisputed  masters  of  English 
soil.  They  brought  with  them  their  customs  and 
usages,  which  bore  a  resemblance  to  those  of  the 
Barbarians  who  made  themselves  masters  of  the 
Roman  provinces  upon  the  continent.  These  were 
personal  independence  and  liberty,  and  popular 
assemblies  in  which  kings  were  elected  for  their 
valour  to  act  as  military  chieftains,  and  in  which 
justice  and  other  affairs  were  administered.  As  the 
tribes  pressed  in  upon  the  Roman  provinces  on  the 
continent  their  customs  and  usages  were  left  to 
compete  with  the  very  different  ones  which  had 
grown  up  under  Roman  dominion,  and  which  con- 
stituted a  law  substantially  Roman.  We  have 
already  observed  that  as  the  Barbarians  became 
softened  and  civilised  by  contact  with  the  greatly 
superior  numbers  of  the  conquered  provincials,  and 
by  degrees  came  to  cultivate  the  arts  and  industries 
of  peace,  they  required  a  more  cultivated  system  of 
law,  and  they  found  it  already  at  hand  in  the  Roman- 
ised jurisprudence  of  the  peoples  whose  masters  they 
had  become.  They  were  as  nations  swallowed  up 
in  the  bosom  of  the  old  populations,  and  their  cus- 

7 


98  Law,  Its  Origin 

toms  and  laws,  like  their  language,  became  gradually 
Romanised.  The  establishment  of  the  Holy  Roman 
Empire  of  Charlemagne,  united  with  the  growing 
papal  authority,  gave  another  impulse  to  this  tend- 
ency, which  was  again  caught  up  in  later  times  by 
the  revised  study  of  the  Roman  law  consequent  upon 
the  discovery  of  the  Pandects  at  Amalphi,  and  thus 
in  the  end  all  the  Western  nations  of  the  continent 
adopted  the  classic  Roman  law  as  the  basis  of  their 
jurisprudence.  And  with  their  juridical  system 
went  also  the  political.  The  freedom  and  inde- 
pendence of  the  German  tribes  were  lost  in  imperial- 
ism, and  monarchs  became  absolute. 

The  course  of  legal  development  proceeded  other- 
wise in  Great  Britain.  The  German  conquerors, 
having  nearly  exterminated  both  the  Roman  and 
the  native  populations,  their  customs  and  usages 
had  no  competition  to  struggle  against,  and  were 
left  to  their  own  natural  development.  The  enlarged 
territorial  dominion,  the  increasing  population,  and 
foreign  wars  demanded  more  stability  of  rule,  and 
the  elected  chieftain  gave  way  to  the  sovereign  by 
inheritance;  but  his  authority  was  always  limited 
in  some  form  by  popular  safeguards,  and  the  historic 
origin  of  our  own  liberties  may  be  thus  traced  to 
our  German  ancestors. 

It  would  be  in  vain  for  us  to  seek  among  the  origi- 
nals of  English  law  for  any  instance  of  the  employ- 
ment of  writing  for  the  purpose  of  law-making  at 
any  time  from  the  completion  of  the  Saxon  conquest, 
near  the  close  of  the  sixth  century,  to  the  Great 
Charter  of  King  John  in  the  thirteenth,  corresponding 


Growth  and  Function  99 

in  significance  or  importance  with  the  legislation  of 
Solon  in  Athens,  the  Twelve  Tables  of  the  Roman 
Law,  or  even  the  Barbarian  Codes.  The  genius  of 
Alfred,  patriot,  soldier,  statesman,  and  scholar, 
fitted  him  indeed  for  the  task  of  lawgiver,  had  such 
a  mission  been  acceptable  to  the  people  over  whom 
he  ruled.  Our  legal  antiquarians  have  indeed  be- 
stowed upon  him  the  appellation,  borrowed  from  im- 
perial Roman  jurisprudence,  of  legum  Anglicarum 
conditor;  but  his  title  to  this  distinction  rests,  not 
upon  any  laws  written  or  enacted  by  his  authority, 
but  upon  a  compilation,  made  under  his  direction,  of 
certain  rules  and  customs  obeyed  and  enforced  in 
the  various  parts  of  England  in  his  time,  and  vari- 
ously styled  Alfred's  Laws,  or  Dome  Book,  and 
which  has  been  unfortunately  lost.1  Permanent 
kingship  was  a  new  experience  with  Saxon  peoples, 
and  though  necessary  for  their  defence  against  the 
hostile  elements  to  which  they  were  opposed  in 
their  new  settlements,  did  not  include  in  their  minds 
the  prerogative  of  dictating  laws.  For  the  purposes 
of  legislation  there  must  be  a  sovereign  whose  author- 
ity to  enforce  his  laws  is  undisputed  throughout  his 
realm,  or  an  assembly  regularly  constituted  and  rec- 
ognised as  really  representative.  Neither  of  those 
conditions  existed  in  England  under  the  Saxon  kings, 
and  though  numerous  documents  have  been  pre- 
served purporting  to  be  laws,  or  dooms,  of  the  Saxons, 
they  consist  chiefly  of  attempts  to  give  certainty  to 
the  sums  of  money,  payable  by  way  of  voluntary 
redress  for  murder  and  other  injuries.  They  have 

»  Bl.  Com  ,  bk.  i.,  p.  65. 


ioo  Law,  Its  Origin 

never  been  appealed  to  in  subsequent  times  as  con- 
stituting part  of  the  law  of  England,  nor  have  they 
been  incorporated  into  any  of  the  authoritative  pub- 
lications of  statute  law.  The  authorities  seem  to 
agree  that  the  Great  Charter  constitutes  the  first 
appearance  of  genuine  written  law  in  the  juridical 
history  of  England.  Says  Professor  Lee  in  his  recent 
work  on  Historical  Jurisprudence: 

It  is  with  the  Great  Charter  of  1215  that  the  distinction 
between  written  and  unwritten  law  became  certain  and 
accepted.  Before  that  date  the  enactments  of  national 
councils,  however  important  they  might  be,  were  not  pre- 
served as  statutes  of  the  realm.  They  belonged  to  the  jus 
non  scriptum.*- 

Messrs.  Pollock  and  Maitland,  in  their  learned  and 
elaborate  work,  express  the  same  view:  "That 
charter  takes  its  place  as  the  first  chapter  of  the  en- 
acted law2";  and  Mr.  Green,  in  his  History  of  the 
English  People,  says: 

It  is  in  this  way  that  the  Great  Charter  marks  the  transition 
from  the  age  of  traditional  rights,  preserved  in  the  nation's 
memory  and  officially  declared  by  the  Primate,  to  the  age 
of  written  legislation,  of  Parliaments  and  Statutes,  which 
was  soon  to  come.3 

And  yet  the  Great  Charter  when  rightly  considered, 
in  the  light  of  the  occasion  and  the  motive  which  led 
to  it,  was  not  a  reduction  of  customary  to  written 
law  for  the  sake  of  the  supposed  advantages  possessed 
by  the  latter  as  law.  King  John  had  been  for  years 
playing  the  part  of  an  absolute  monarch,  and  setting 

1  Historical  Jurisprudence  p.  479, 

2  Vol.  i.,  p.  78. 
»  Vol  i.  p.  245 


Growth  and  Function  101 

at  defiance  every  limit  upon  the  royal  prerogative. 
His  oppressions,  while  weighing  heavily  upon  the 
body  of  the  people,  were  felt  more  keenly  by  the 
barons,  and  had  at  length  brought  them  into  open 
war  with  their  sovereign.  He  was  obliged  to  yield, 
and  the  Great  Charter  was  simply  the  treaty  which 
he  was  compelled  to  sign  in  order  to  conclude  the 
war. 1  It  was  the  record  of  the  conditions  under  which 
he  was  to  be  permitted  to  continue  to  wear  the  crown. 
The  prior  law  had  not  in  any  manner  failed  because  it 
was  not  in  writing,  but  because  the  king  himself  had 
set  it  at  defiance.  It  is,  indeed,  a  proof,  if  proof  were 
needed,  that  a  written  contract  embracing  many 
provisions  is  superior,  in  form  and  efficacy,  to  a 
verbal  one,  but  it  proves  nothing  more. 

I  have  yet  to  refer  to  the  most  significant  and 
instructive  instance  of  the  employment  of  writing 
for  the  purpose  of  legislation.  I  mean  that  of  the 
law  of  the  Church  of  Rome,  what  is  commonly  called 
the  Canon  Law.  The  Roman  Catholic  Church, 
originally  a  small  religious  society,  by  degrees,  in 
the  face  of  persecution,  had  extended  itself  through- 
out the  Roman  Empire  until  in  the  reign  of  Con- 
stantine  it  was  acknowledged  and  accepted  by  that 
empire  as  the  only  authorised  spiritual  power,  and 
prior  to  the  Reformation  the  whole  European  world 
had  accepted  its  faith  and  acknowledged  its  author- 
ity. Its  organisation  became  more  and  more  elabo- 
rate, refined,  and  complete  as  its  numbers  and  power 
increased.  The  fundamental  conception  upon  which 
it  was  founded  was  that  of  a  hierarchy  instituted  by 

^tubbs,  Con.  Hist.,  vol.  ii.,  p.  2. 


102  Law,  Its  Origin 

Christ  himself  through  the  apostle  Peter,  and  main- 
tained by  his  successors,  the  Bishops  of  Rome,  as 
the  visible  vice-regents  of  the  Almighty  upon  earth. 
The  society  constituted  by  it  is  not  limited  by  the 
boundaries  of  nations,  but  embraces  the  whole  body 
of  believers,  wherever  found.  Absolute  obedience 
is  due  to  it  by  every  member,  from  the  king  to  the 
peasant,  and  even  by  the  corporate  nationalities 
which  profess  the  Catholic  faith.  It  claims  an  em- 
pire not  only  over  the  minds  and  consciences,  but 
also  over  the  actions  of  men,  and  if  it  has  failed  to 
assert  authority  over  all  their  actions  it  is  because 
reason  or  policy  has  advised  the  abstention.  It  need 
not  be  said  that  pretensions  like  these  can  have  no 
limitation  except  such  as  are  self-imposed.  The 
Divine  authority  must  necessarily  be  absolute  and 
supreme  over  all  merely  human  power.  These 
claims  on  the  part  of  the  Church  have  never  been 
wholly  acceded  to  in  any  nation  except  the  Papal 
States  of  Italy  before  the  abrogation  of  the  temporal 
power  of  the  Popes ;  but  they  were  at  an  early  period 
admitted  to  a  considerable  extent.  The  conduct  of 
the  clergy,  the  regulation  of  church  property,  the 
administration  of  the  personal  property  of  deced- 
ents, marriage  and  divorce,  the  punishment  of 
heresy,  etc.,  were  conceded  to  the  jurisdiction  of  the 
spiritual  courts,  and  many  traces  of  this  concession 
are  still  to  be  found  in  the  jurisprudence  of  England 
and  even  of  the  United  States.  The  legislative  au- 
thority included  within  these  claims  is  vested  in  the 
supreme  pontiff  and  the  general  councils  of  the 
Church,  and  by  its  exercise  from  time  to  time,  a 


Growth  and  Function  103 

vast  body  of  law  has  been  created  and  reduced  to  a 
highly  refined  and  logical  system.  The  Code,  the 
Novels,  and  the  Pandects  of  Justinian,  constituting 
the  Corpus  Juris  Civilis,  are  paralleled  by  the  Decre- 
tum,  the  Decretals,  and  the  Extravagantes,  con- 
stituting the  Corpus  Juris  Canonici.  Its  commands 
are  enforced  by  many  weapons  drawn  from  the 
spiritual  armoury,  of  which  excommunication  is  the 
most  effective,  and  when  these  have  failed,  the 
temporal  power  has  often  lent  its  aid.  This  law, 
assuming  to  be  an  expression  of  the  will  of  the 
Almighty,  communicated  through  his  vice-regent  on 
earth,  is  embodied  in  writing,  and  is,  in  theory, 
the  most  perfect  exemplification  of  written  law. 
Not  being  of  human  origin  it  cannot  be  created  by 
custom,  though  human  custom  may  be,  and  often 
is,  recognised  and  sanctioned  in  its  administration. 
If  it  were  universally  and  completely  enforced  in 
harmony  with  its  pretensions,  it  would  entirely 
answer  to  Austin's  definition  of  law,  as  being  a 
command  addressed  by  a  superior  to  an  inferior. 
The  authors,  however,  whose  labours  built  up  the 
Canon  Law,  being  ecclesiastics,  were,  in  general, 
the  most  learned  persons  of  their  times,  and  their 
system  exhibits  the  first  efforts,  subsequent  to  the 
downfall  of  the  Roman  Empire,  to  apply  scientific 
principles  to  the  composition  of  law,  and  the  civil 
law  of  the  Middle  Ages  is  largely  indebted  to  the 
Church  for  many  of  its  improvements.  This  bene- 
ficial influence  proceeded  not  only  from  the  text 
of  the  Canon  Law,  but  also  from  the  direct  work 
of  the  ecclesiastics  who  were  frequently  employed 


104  Law,  Its  Origin 

as  ministers  of  State  and  members  of  the  judicial 
tribunals. 

But  in  answer  to  the  question  how  far  this  system 
of  written  law  has  at  any  time  come  to  govern  the 
actual  conduct  of  men  in  their  transactions  with 
each  other  and  in  their  relations  to  the  State,  we 
must  say  that  it  has  had  comparatively  little  direct 
force  or  influence  proprio  vigore;  and  so  far  as  it 
has  had  any  authority,  it  has  been  derived  from  the 
State  and  dependent  upon  the  State  for  its  con- 
tinuance. It  has  really  been  efficacious  in  dealing 
with  civil  concerns  only  so  far  as  it  has  recognised 
and  enforced  the  actual  customs  of  civil  society. 
The  great  Churchmen  who  in  the  Middle  Ages  and 
later  so  frequently  filled  the  great  offices  of  State 
were  quite  as  skilful  in  administering  temporal  as 
they  were  spiritual  affairs,  and  in  the  performance 
of  judicial  duties  they  conferred  the  greatest  bene- 
fit by  applying  to  the  enforcement  of  the  customs 
of  life,  the  order,  system,  and  methods  which  they 
had  learned  in  the  Roman  and  Canon  Law. 

In  considering  the  instances  of  the  employment  of 
writing  in  the  making  of  laws,  I  have  thus  far 
referred  to  those  only  (excepting  the  Canon  Law) 
occurring  in  early  stages  of  social  development,  and 
only  the  most  notable.  There  are,  however,  many 
others  to  be  found  before  either  legislation  or 
the  law  of  custom  and  precedent  had  reached  what 
may  be  called  the  scientific  stage,  and  some  brief 
attention  to  these  will  be  instructive.  There  were 
quite  a  number  of  statutes,  or  ordinances  in  the 
nature  of  statutes,  enacted  in  England,  some  of 


Growth  and  Function  105 

them  prior  even  to  the  Great  Charter,  but  of  many 
of  them  no  permanent  memorial  has  been  preserved, 
a  fact  indicating  that  they  were  not  of  permanent 
importance.  Such  of  them  as  have  been  preserved 
will  be  found  to  be  in  the  main  not  attempts  to  re- 
duce the  customary  law  to  writing, 'or  to  directly  affect 
the  ordinary  transactions  of  men,  but  to  bring 
about  some  political  object  such  as  the  correction 
of  the  mode  of  judicial  procedure,  relief  from  royal 
oppressions,  or  the  defeat  of  the  pretensions  of  the 
Church.  Among  these  was  the  Charter  of  the  Forest 
(1217),  one  of  the  chief  measures  designed  to  afford 
relief  against  the  abuses  and  oppressions  of  the 
Forest  laws;  also  what  are  called  the  Constitutions 
of  Clarendon  (1164)  from  the  name  of  the  place 
where  they  were  enacted.  They  are  thus  described 
by  Bishop  Stubbs  in  his  Constitutional  History: 

The  Constitutions  of  Clarendon  are  sixteen  in  number,  and 
purport  to  be,  as  the  history  of  their  production  shows  them 
to  have  been,  a  report  of  the  usages  of  Henry  I.  on  the  dis- 
puted points.  They  concern  questions  of  advowsons  and 
presentation,  churches  in  the  king's  gift,  the  trial  of  clerks, 
the  security  to  be  taken  of  the  excommunicated,  the  trial  of 
laymen  for  spiritual  offences,  the  excommunication  of  tenants- 
in-chief,  the  licence  of  the  clergy  to  go  abroad,  ecclesiastical 
appeals,  which  are  not  to  go  further  than  the  archbishop  with- 
out the  consent  of  the  king ;  questions  of  the  title  to  ecclesias- 
tical estates,  the  baronial  duties  of  the  prelates,  the  election 
to  bishoprics  and  abbacies,  the  right  of  the  king  to  the  goods 
of  felons  deposited  under  the  protection  of  the  Church,  and 
the  ordination  of  villeins.1 

And  he  further  describes  them  as  being  "a  part  of 

1  Stubbs,  Constitutional  History,  vol.  i.,  p.  502. 


io6  Law,  Its  Origin 

a  great  scheme  of  administrative  reform,  by  which 
the  debatable  ground  between  the  spiritual  and 
temporal  powers  can  be  brought  within  the  reach 
of  common  justice  and  the  lawlessness  arising  from 
professional  jealousies  abolished."1 

The  Assize  of  Clarendon,  sometimes  called  the 
Great  Assize  (1166),  was  an  enactment  of  which  the 
principal  feature  was  an  improvement  of  judicial 
procedure  in  the  case  of  criminals,  and  is  a  part  of 
the  same  scheme  of  reform  attempted  by  Henry  to 
which  the  Constitutions  of  Clarendon  belong.  The 
statute  of  Merton  (1236)  is  noted  as  being  that  in 
which  the  assembled  barons  declared  they  would  not 
have  the  laws  of  England  changed. 

The  reign  of  Edward  I.,  memorable  in  the  history 
of  English  law,  was  quite  prolific  in  legislation.  The 
famous  statute  of  Westminster  (1275)  was  passed 
in  the  first  session  of  his  reign,  but  Edward's  pur- 
poses were,  in  the  main,  reformatory  and  political 
in  that  sense.  The  reformation  of  abuses,  the  due 
execution  of  the  existing  law,  the  providing  of  more 
efficient  methods  of  procedure;  in  other  words,  the 
framing  of  sufficient  instrumentalities  by  which  the 
existing  customs  could  be  better  enforced,  were  the 
things  he  had  in  view,  and  these  he  sought  to  com- 
pass by  the  statute  last  mentioned.  The  famous 
statute  De  Religiosis  (1279),  which  forbids  the  ac- 
quisition of  land  by  the  religious  orders  in  such  wise 
that  the  land  should  come  into  mortmain,2  is  another 
political  and  reformatory  measure.  So  also  the 

1  Stubbs,  Con.  Hist.,  vol.  i.,  p.  503. 

2  Ibid.,  vol.  ii.,  p.  117. 


Growth  and  Function  107 

Statute  of  Westminster  the  Second,  and  the  Statute 
of  Winchester,  both  enacted  in  the  same  year  (1285). 
The  first  contains  the  enactment  commonly  called 
De  Donis  Conditionalibus,  and  also  a  provision  for 
the  better  correction  of  errors  of  law  committed  in 
the  course  of  a  trial,  and  which  therefore  did  not 
appear  by  the  record;  which  is  the  original  warrant 
for  our  present  bill  of  exceptions.  The  important 
statute  commonly  known  as  Quia  Emptores,  which 
saved  to  the  chief  lord  of  a  fee  the  services  and 
profits  due  to  him  as  the  feudal  owner  notwithstand- 
ing any  grant  by  the  tenant,  thus  destroying  one  of 
the  former  consequences  of  subinfeudation,  was 
enacted  at  the  third  Parliament  of  Westminster 
(1290).  The  object  of  this  was  the  political  one  of 
saving  to  the  King  and  his  chief  lords  the  services 
and  profits  just  mentioned.  The  statute  of  Carlisle 
(1309)  was  one  of  the  many  acts  of  legislation  de- 
signed to  restrain  the  power  and  influence  of  the 
clergy  and  the  Pope.  The  statute  of  Pr&munire 
(I355)>  declaring  forfeiture  and  outlawry  against 
those  suing  in  foreign  courts  for  matters  cognisable 
in  the  King's  Courts,  was  a  feature  of  the  struggle 
between  the  King  and  the  Church.  The  Statute  of 
Treasons  (1352)  for  the  first  time  defined  the  offence 
and  punishment  of  treason. 

To  further  trace  the  course  of  British  legislation 
down  to  the  period  to  which  I  shall  next  call  particu- 
lar attention,  would  involve  a  detail  beyond  the  scope 
of  these  lectures.  I  may  safely  say  that  this  sub- 
sequent legislation,  however  numerous  the  instances, 
was  in  point  of  purpose  and  effect,  as  in  the  cases 


io8  Law,  Its  Origin 

I  have  already  considered,  special  and  particular, 
the  object  being  sometimes  to  correct  an  abuse, 
sometimes  to  institute  a  reform,  sometimes  to  carry 
a  point  for  or  against  the  King,  the  barons,  the 
Church,  or  the  people. 

Still  less  have  I  room  to  trace  for  the  same  period 
the  course  of  legislation  on  the  continent  subsequent 
to  the  promulgation  of  the  Barbarian  Codes.  I  must, 
nevertheless,  briefly  indicate  the  general  character  of 
the  legal  systems  which  grew  up  subsequently  to  those 
Codes  and  the  extent  to  which  they  were  influenced 
by  legislation,  confining  my  attention,  however, 
mainly  to  France  and  Germany.  As  we  have  al- 
ready seen,  the  provinces  of  the  Roman  Empire  of 
which  the  Barbarians  became  masters,  were  civil- 
ised States  in  which  conduct  was  regulated  by  a 
law  customary,  but  substantially  Roman.  The 
Barbarian  Codes  did  not  entirely,  or  in  the  main, 
replace  this  law,  but  superinduced  upon  it  the 
customs  of  the  Barbarians,  as  a  personal  law,  binding 
in  favour  of  the  Barbarians  and  as  between  them- 
selves, but  leaving  the  vanquished  nations  otherwise 
to  enjoy  their  own  customs.  The  shifting  of  the 
Barbarians  from  place  to  place,  and  the  mingling  of 
them  together,  aggravated  the  confusion  caused  by 
the  simultaneous  existence  of  personal  and  terri- 
torial law,  and  made  it  intolerable.  Besides  this, 
the  unsettled  condition  of  the  whole  territory,  the 
incessant  wars  for  the  extension  of  empire  or  the 
aggrandisement  of  dynasties,  the  rapid  changes  in 
the  boundaries  of  States  and  provinces,  would  have 
made  orderly  legislation  impossible,  had  there  been 


Growth  and  Function  109- 

at  this  period  any  developed  capacity  for  legislation. 
Charlemagne,  indeed,  and  his  immediate  successors,, 
made  efforts  to  reduce  this  confusion  into  something 
like  order  through  their  decrees  called  Capitularies, 
but  I  think  it  is  agreed  by  legal  historians  that  their 
effect  was  inconsiderable,  and  the  practice  of  issuing 
them  was  soon  discontinued.  Law  seems  to  have 
been  left  to  work  out  its  own  solutions,  and  the 
result  was,  at  least  in  France,  that,  after  the  lapse 
of  four  centuries  from  the  Barbarian  conquest,  the 
confusion  of  personal  and  territorial  law  gave  way 
to  the  establishment  of  different  territorial  systems, 
called  Coutumes,  in  different  provinces.  These  sys- 
tems were  in  their  nature  customary  law,  variously 
compounded  of  the  Barbarian  customs  and  the  old 
Romanised  law,  the  latter  almost  continually  grow- 
ing in  comparative  strength,  as  society  became  more 
civilised  and  given  to  industrial  pursuits.  This 
growing  predominance  of  the  Roman  law  received 
a  fresh  impetus  from  the  revival  of  the  scientific 
study  of  that  law,  after  the  discovery  of  the  Pandects, 
at  the  University  of  Bologna.  Students  flocked 
thither  from  all  countries,  and  the  legal  doctrines 
there  acquired  were  disseminated  throughout  the 
nations  of  the  continent.  A  cultivated  jurisprudence 
was  more  and  more  demanded  as  civilisation  ad- 
vanced and  industry  and  commerce  became  more 
pervading.  This  was  furnished  ready-made  by  the 
Roman  law,  and  the  administration  of  justice  in  all 
the  Western  States  of  Europe  became  more  and 
more  permeated  with  it. 

Little  resort  was  had  to  legislation  in  France  until 


no  Law,  Its  Origin 

the  middle  of  the  fifteenth  century.  Between  that 
time  and  the  reign  of  Louis  XIV.,  a  number  of  royal 
ordinances  were  adopted,  the  principal  of  which  had 
for  their  object  to  reduce  the  Coutumes  to  greater 
uniformity  and  precision  and  to  improve  judicial 
procedure.  France  under  Louis  XIV.,  had  become 
a  thoroughly  consolidated  absolute  monarchy.  The 
sovereign  was  ambitious  alike  of  personal  and 
national  aggrandisement.  His  legislative  power  was 
unlimited,  and  a  great  opportunity  for  improvement 
in  internal  administration  was  opened  to  him.  Under 
the  guidance  of  the  wisdom  of  Colbert,  this  oppor- 
tunity was  employed  in  various  efforts  to  reform  the 
public  administration.  So  far  as  the  legal  system 
was  concerned  there  were  three  principal  evils.  The 
first  was  the  lack  of  an  orderly  and  uniform  method 
of  procedure  in  civil  and  criminal  cases.  The  second 
was  lack  of  uniformity  in  the  law  growing  out  of 
the  various  differing  coutumes.  The  third  was  the 
uncertainty  and  confusion  in  the  law  itself,  the  con- 
sequence of  the  different  sources  from  which  much 
of  it  had  been  borrowed,  and  the  want  of  harmony 
and  capacity  in  the  courts  which  administered  it. 
The  method  of  improvement  adopted  by  Louis 
XIV.  appears  to  have  been  to  select  branches  or 
subjects  of  law,  in  which  improvement  was  most 
needed,  or  perhaps  in  which  it  was  most  practicable 
at  the  time,  and  reduce  them  to  writing.  The  most 
important  of  the  measures  were:  (i)  An  Ordonnance 
for  the  reformation  of  the  procedure  of  the  courts 
in  civil  cases.  (2)  An  Ordonnance  for  the  reformation 
of  the  criminal  procedure.  The  subjects  embraced 


Growth  and  Function  in 

by  these  two  pieces  of  legislation  are  not  substantive 
law,  but  instrumentalities,  machinery,  designed  to 
carry  such  law  into  effect.  They  do  not  comprise 
rules  for  the  regulation  of  conduct,  but  forms  of  pro- 
ceedings designed  to  enforce  such  rules;  and  they 
are,  as  I  may  hereafter  more  particularly  show,  the 
proper  subjects  of  written  law.  (3)  The  Ordonnance 
du  Commerce,  which  was  an  attempted  reduction  of 
the  commercial  law  into  writing — in  other  words, 
a  codification.  (4)  The  Ordonnance  de  la  Marine. 
This  was  a  like  attempted  codification  of  the  maritime 
law.  In  these  two  last  mentioned  pieces  of  legis- 
tion  we  find  the  beginning  in  France  of  those  attempts 
for  the  reduction  of  the  unwritten  and  customary 
law  to  writing  which  culminated  later  in  the  Code  of 
Napoleon.  It  will  be  perceived  that  none  of  these 
Ordonnances  of  Louis  XIV.  were  designed  to  remedy 
the  confusion  in  French  law  arising  from  the  differ- 
ences in  the  provincial  coutumes. 

Louis  XV.  had  the  advantage  of  the  advice  and 
assistance  of  the  Chancellor  d'Aguesseau,  a  con- 
summate lawyer,  and  under  his  inspiration  a  begin- 
ning was  made  in  the  task  of  bringing  the  law  of 
the  different  parts  of  the  kingdom  into  uniformity. 
This  was  done  by  the  promulgation  and  execution 
of  three  separate  Ordonnances,  one  relating  to  dona- 
tions— Ordonnance  sur  les  donations,  which  had  for  its 
object  the  reduction  of  the  law  in  all  parts  of  France 
upon  this  subject  to  uniformity,  being  an  attempt 
in  the  way  of  codification.  Another  in  relation  to 
testaments — Ordonnance  sur  les  testaments,  which 
recognised  and  preserved  the  two  different  systems 


ii2  Law,  Its  Origin 

of  law  on  this  subject  then  prevailing  in  the  Northern 
and  Southern  parts  respectively  of  the  kingdom; 
and  the  other  relating  to  trusts — Ordonnance  sur  les 
substitutions  fidti-commissaires,  designed  to  effect 
reforms  in  the  constitution  and  administration  of 
trusts.  This  legislation  under  Louis  XIV.  and  Louis 
XV.  was,  to  a  considerable  extent,  embodied  by  the 
framers  of  the  Code  Napoleon  in  their  work. 1 

In  Germany,  the  course  of  development  of  law 
subsequent  to  the  Barbarian  Codes  was  somewhat 
different.  The  barbarous  tribes,  as  they  became  by 
degrees  more  civilised,  required,  as  we  have  seen, 
for  the  ordinary  transactions  of  life  a  law  more 
refined  than  the  rude  customs  by  which  they  were 
originally  governed.  Their  civilisation  was  pro- 
moted by  their  contact  with  the  Roman  peoples, 
and  hence  arose  a  tendency  in  favour  of  the  adop- 
tion of  the  Roman  law.  This  tendency  was  greatly 
strengthened  by  the  establishment  of  the  Holy 
Roman  Empire.  The  close  connection  of  that  Em- 
pire with  Rome  and  the  Church  and  its  pretence 
to  be  the  successor  of  the  Empire  of  the  Caesars  dic- 
tated the  sanction  of  the  Roman  law.  But  what 
more,  perhaps,  than  all  else  led  to  the  general  adop- 
tion of  that  law  was  the  circumstance  that  the 
administrators  and  teachers  of  the  law,  bred  in  the 
universities,  everywhere  participated  in  the  revived 
study  of  the  Roman  law  consequent  upon  the  dis- 
covery of  the  copy  of  the  Pandects,  and  exerted  a 
steady  influence  in  favour  of  its  general  introduction  as 
the  governing  law  in  all  private  transactions.  Never- 

1  Lee,  Historical  Jurisprudence,  ch.  xv.,  sec.  iii. 


Growth  and  Function  113 

theless,  the  old  customs  were  retained  by  the 
different  provinces  as  they  became  consolidated  into 
larger  States,  and  the  reconciliation  of  these  with  the 
Roman  law  was  the  continual  task  of  judicial  admin- 
istration. I  suppose  it  would  be  true  to  say  that  the 
Roman  law  came  to  be  adopted  except  where  it  was 
in  conflict  with  settled  local  customs,  and  there  the 
latter  prevailed.  Prior  to  the  general  movement  in  the 
direction  of  codification  initiated  by  the  Code  Napo- 
leon there  was  little  in  the  way  of  legislation  touching 
the  law  of  private  transactions.  Some  important 
private  efforts  were  made  to  set  forth  the  law  of 
particular  States,  but  these  had  no  other  authority 
than  that  of  text-books.  Prof.  Lee  states  that 
"according  to  the  German  opinion,  the  legislative 
authority  of  the  rulers  had  little  to  do  with  the 
private  law.  That  was  a  matter  of  custom  and 
should  be  left  to  the  local  communities  to  develop 
as  they  wished."1 

In  Italy,  the  Ostrogoths  maintained,  for  a  time, 
some  of  their  barbarian  customs  superinduced  upon 
the  basis  of  the  Roman  law,  but  the  latter  was  never 
displaced,  and  upon  the  revival  of  the  study  of 
jurisprudence  it  resumed  its  sway  as  the  sole  guide 
for  the  regulation  of  conduct. 

The  Visigothic  conquerors  of  Spain  seem  to  have 
been  ambitious  of  substituting  their  own  law  in  the 
place  of  the  Roman  jurisprudence,  but  their  suc- 
cessive declarations  of  the  supremacy  of  their  codes, 
and  interdicts  of  Roman  law,  serve  to  show  how 
difficult  it  is  to  supplant  the  law  of  a  conquered 

1  Historical  Jurisprudence,  p.  409. 
8 


ii4    Law:  Origin,  Growth,  and  Function 

people  without  exterminating  them,  and  also  how 
ineffectual  are  all  efforts  to  govern  the  conduct  of  a 
civilised  people  by  the  customs  of  barbarians.  The 
Jesuits  of  Spain  have  been  wont  to  insist  that  their 
law  is  Spanish,  not  Roman,  but  the  contents  of  their 
written  codes  and  their  own  law-books  contradict 
this  pretension. 


LECTURE  V 

THIS  rapid  and  glancing  review  of  the  most  con- 
spicuous instances  of  legislation  in  the  ruder 
periods  preceding  the  present  enlightened  age,  is 
quite  sufficient  to  enable  us  to  answer  the  question 
for  what  purpose  and  to  what  extent  it  was  resorted 
to  throughout  those  periods.  We  have  seen  that  it 
was  employed  to  compose  differences  between  various 
classes  in  society  and  to  furnish  machinery  by 
which  the  customary  law  might  be  more  efficiently 
administered,  and  from  time  to  time  to  better  adapt 
that  machinery  to  the  changing  and  developing 
wants  of  society,  and  that  where  it  was  aimed  directly 
at  individual  conduct  it  was  for  the  purpose  of  secur- 
ing better  obedience  to  the  customary  law  by  public 
punishment  of  the  more  flagrant  violations  of  custom, 
which  is  the  office  of  the  criminal  law;  in  other 
words,  we  find  that  at  the  first  appearance  of  legis- 
lation its  province  and  the  province  of  Public  Law 
were  nearly  conterminous.  The  province  of  Private 
Law  is  scarcely  touched. 

In  the  present  enlightened  age  we  find  a  much 
greater  resort  to  legislation;  but  the  important 
question  is  whether  its  purpose  and  nature  have 
been  changed.  This  is  easily  answered.  The  whole 
of  the  legislation  of  any  American  State,  to  take  an 

"5 


n6  Law,  Its  Origin 

example,  is  contained  in  its  easily  accessible  statute- 
books.  We  may  know  the  general  contents  of  all  of 
them  from  an  examination  of  those  of  one  State. 
They  will  be  found  to  embrace  its  fundamental 
Constitution  creating  the  Executive,  Legislative, 
and  Judicial  Departments,  the  organisation  of  the 
State  into  political  districts,  the  creation  of  the 
the  various  State  and  local  officers  and  the  designa- 
tion of  their  duties;  provisions  for  the  conduct  of 
elections;  a  system  for  raising  money  to  support 
State  and  local  government  by  taxation  and  applying 
it  in  many  different  ways;  provisions  for  creating 
and  maintaining  public  highways,  including  rail- 
roads; for  forming  corporations,  for  preserving  the 
public  health,  and  for  supervising  many  important 
public  concerns,  such  as  banking,  insurance,  etc., 
and  a  multitude  of  other  public  provisions  including 
the  whole  of  the  law  relating  to  the  designating 
and  punishment  of  crimes.  Besides  this,  we  find 
in  the  numerous  volumes  of  statute-books  vast 
masses  of  matter  which,  though  in  the  form  of  laws, 
are  not  law  in  any  proper  sense.  These  consist  in  the 
making  of  provision  for  the  maintenance  of  the 
public  works  of  the  State,  for  the  building  of  asylums, 
hospitals,  school-houses,  and  a  great  variety  of 
other  similar  matters.  This  is  but  the  record  of 
the  action  of  the  State  in  relation  to  the  business 
in  which  it  is  engaged.  The  State  is  a  great  public 
corporation  which  conducts  a  vast  mass  of  business, 
and  the  written  provisions  for  this,  though  in  the 
form  of  laws,  are  not  essentially  different  from  the 
minutes  of  ordinary  corporate  bodies  recording 


Growth  and  Function  1 1 7 

their  action.  But  when  we  search  for  any  matter 
relating  to  the  regulation  of  the  ordinary  conduct 
of  men  in  their  transactions  with  each  other — that  is, 
•to  Private  Law,  we  find  exceedingly  little,  and  we 
may  say  that  it  is  substantially  true  that  the  whole 
vast  body  of  legislation  is  confined  to  Public  Law, 
and  that  its  operation  on  Private  Law  is  remote  and 
indirect  and  aimed  only  to  make  the  unwritten  law 
of  custom  more  easily  and  certainly  enforced.  If  we 
make  a  similar  examination  of  the  Statutes  at  Large 
of  Great  Britain  the  result  is  the  same;  and  the 
same  also,  if  we  examine  the  legislation  of  Rome  in 
the  classic  era  of  jurisprudence. 

There  is  one  great  seeming  exception  in  the  case 
of  the  various  codifications  of  the  customary  law. 
We  find  in  Roman  Law  the  great  volume  of  the  Pan- 
dects ;  we  find  the  Civil  Code  in  France.  There  are 
Civil  Codes  in  Germany.  There  is  a  reduction  to 
writing  of  one  or  more  chapters  of  Private  Law  in 
England ;  and  there  are  Civil  Codes  in  several  Amer- 
ican States.  But  the  exception  in  these  cases,  when 
we  consider  its  true  nature,  is  more  apparent  than 
real.  The  law  enacted  in  these  Civil  Codes  was  not 
made  by  the  legislation  enacting  them.  It  existed, 
for  the  most  part,  as  law  before,  and  the  enactment 
added  no  force  to  it.  In  the  cases  of  Rome,  France, 
and  Germany  the  unification  of  different  peoples  and 
provinces  into  larger  nations  had  made  it  necessary 
for  the  tribunals  to  enforce  different  customs  for 
different  places,  an  inconvenient  task;  but  this 
difference  was  gradually  disappearing  in  the  closer 
relations  brought  about  by  the  consolidation  of 


n8  Law,  Its  Origin 

nationalities,  and  the  main  purpose  of  the  codifica- 
tion was  to  hasten  the  coming  uniformity,  which 
could  be  completely  accomplished  only  by  legislation. 
The  motive  to  such  codifications  as  have  taken  place 
in  the  United  States  and  Great  Britain  was  the 
supposed  increased  accessibility  of  the  law  by  enab- 
ling it  to  be  found  in  a  single  book>  the  same  motive 
which  led  to  the  production  of  Digests.  The  crea- 
tion of  new  law  was  but  a  small  part  of  the  object. 

There  are  some  smaller  exceptions  in  which  legis- 
lation is  employed  in  shaping  rules  of  private  con- 
duct. I  refer  to  instances  in  which  actual  changes 
are  made  in  Private  Law  in  particular  cases ;  but  they 
are  quite  exceptional  and  occur  in  cases  where  the 
courts  are  in  conflict,  or  where  the  customs  as  en- 
forced by  the  courts  have  been  gradually  changing 
in  the  course  of  social  progress,  and  conflicts  in  cus- 
tom arise  which  the  courts  find  it  difficult  to  deal 
with.  But  these  exceptional  cases  really  fall  within 
the  province  of  Public  Law,  because  it  is  the  office 
of  that  law  to  furnish  to  the  judicial  tribunals  a 
warrant  for  making  those  changes  in  decision  which 
the  changes  in  custom  require,  but  which  a  regard 
for  consistency  prevents  them  from  making.  My 
conclusion  is  that  so  far  as  Private  Law — the  law 
which  governs  our  conduct  in  our  ordinary  trans- 
actions with  each  other — is  concerned,  the  influence 
of  legislation — of  written  law — has  been  exceedingly 
small.  The  latter,  in  fact,  constitutes  what  has  been 
not  inaptly  styled  "a  mere  fringe  on  the  body  of 
law/' 

I  have  now  completed  my  survey  of  human  life  in 


Growth  and  Function  119 

all  ages  and  in  all  stages  of  social  progress,  for 
the  purpose  of  ascertaining  the  causes  which  have, 
in  point  of  fact,  governed,  and  which  still  govern, 
human  conduct.  This  survey  has  embraced  primitive 
man,  the  savage  member  of  a  wandering  horde ;  man 
when  he  first  adopts  a  fixed  place  of  abode;  man 
when  he  first  consciously  organises  a  social  state; 
man  when  he  has  first  acquired  the  art  of  writing 
and  when  he  first  employs  that  art  in  the  composition 
of  laws;  man  as  the- subject  of  a  conqueror  imposing 
his  dominion  over  realms  not  his  own;  man  as  the 
member  of  a  conquered  nation  accepting  submissively 
the  rule  of  strangers ;  man  in  society  where  there  is 
no  power  to  protect  him  save  his  own  right  arm; 
man  during  the  long  period  in  which  he  seeks  by  the 
establishment  of  judicial  tribunals  to  supplant  the 
violence  of  self-help;  man  down  to  the  period 
when  judicial  tribunals  and  legislatures  have  been 
established  and  perfected;  man  in  the  present  en- 
lightened age : — and  the  conclusion  is  clear  that  habit 
and  custom  'in  each  of  these  different  conditions 
furnish  the  rules  which  govern  human  conduct,  and 
that  they  still  exert  over  enlightened  man  the  same 
imperious  dominion  that  they  did  among  the  prime- 
val hordes  which  peopled  the  world  before  the  dawn 
of  civilisation,  or  that  they  now  do  among  the  bar- 
barous tribes  which  inhabit  the  wilds  of  Patagonia 
or  Australia. 

To  the  absolute  generality  of  this  conclusion  an 
exception  is  to  be  made  for  the  influence  of  legis- 
lation; but  the  extent  of  this  exception  diminishes 
to  a  point  where  we  may,  for  all  large  and  general 


120  Law,  Its  Origin 

purposes,  dismiss  it  from  attention,  when  we  con- 
sider that  its  principal  function  is  to  supplement  and 
aid  the  operation  of  custom  and  that  it  can  never 
supplant  it,  and  also  consider,  what  I  may  hereafter 
more  fully  show,  that  its  own  efficiency  is  dependent 
upon  its  conformity  to  habit  and  custom.  What  has 
governed  the  conduct  of  men  from  the  beginning  of 
time  will  continue  to  govern  it  to  the  end  of  time. 
Human  nature  is  not  likely  to  undergo  a  radical 
change,  and,  therefore,  that  to  which  we  give  the 
name  of  Law  always  has  been,  still  is,  and  will 
forever  continue  to  be  Custom. 

But  while  all  Law  is  Custom,  all  Custom  is  not 
necessarily  Law.  Law  differs  from  custom  as  a  part 
differs  from  the  whole.  There  is  a  large  range  of 
human  conduct  of  which  the  law  takes  no  notice, 
though  it  is  under  the  control  of  custom  quite  as 
much  as  that  part  which  the  law  assumes  to  regulate. 
A  great  part  of  this  conduct  falls  under  the  control 
of  moral  rules  which  are  enforced  mainly  by  public 
opinion  and  form  the  subject  of  the  science  of  moral- 
ity, about  which  I  shall  have  something  to  say 
hereafter.  Other  parts  of  it  are  such  as  are  con- 
trolled by  the  usages  of  fashion  or  etiquette,  and 
there  is  still  another  most  important  part  lying  be- 
yond the  immediate  scope  of  my  inquiries  in  which 
the  individual  alone  is  concerned,  and  which  em- 
braces what  may  be  called  his  interior  life.  This  is 
more  especially  within  the  sphere  of  religious  thought 
and  action. 

This  conception  of  law,  identifying,  as  it  does, 
all  the  rules  which  govern  the  conduct  of  men  in 


Growth  and  Function  121 

their  transactions  with  each  other,  including  even 
the  rules  of  morality,  with  custom  and  habit,  will 
not,  I  suppose,  be  willingly  accepted.  Legal  writers 
have  at  all  times  allowed  much  weight  to  custom, 
viewing  it  as  one,  but  only  one,  of  the  sources  of  law, 
as  if  there  were  some  governmental  power  standing 
above  custom,  the  function  of  which  was  to  pro- 
nounce judgment  on  the  wisdom  of  custom,  and 
select  from  it  the  rules  it  would  enforce  and  reject 
the  rest.  Ancient  customs  they  have  indeed  regarded 
as  having  the  force  of  law,  but  this  quality  they 
impute,  not  to  the  custom,  qua  custom,  but  to  its 
antiquity,  whereas  the  conclusion  at  which  I  arrive 
erects  present  existing  custom  as  the  standard  of  law. 
This  is  not  in  harmony  with  the  opinion  of  those 
who  make  law  to  be  the  positive  command  of  the 
Sovereign  power  in  a  State,  nor  of  those  who,  like 
the  classical  jurists  of  Rome,  ascribe  its  origin  to  an 
incomprehensible  something  called  the  Law  of  Na- 
ture, and  apparently  not  with  the  views  of  those 
who  regard  all  morality  as  founded  upon  the  com- 
mand of  God,  directly  or  indirectly  revealed.  It 
will  seem  to  all  these  to  detract  from  the  sublime 
dignity  which  they  would  ascribe  to  law  and  moral- 
ity, and  impair  the  reverence  in  which  they  should 
be  held,  to  identify  them  with  a  thing  seldom  re- 
garded as  carrying  with  it  any  high  obligation.  We 
say  of  men,  by  way  of  derogation,  that  they  do  this 
or  that,  because  they  have  got  into  the  habit  of  doing 
it,  or  because  they  feel  that  mere  custom  requires  it, 
and  we  are  all  inclined  to  regard  it  as  evidence  of  a 
lofty  character  when  men  disregard  custom,  and 


122  Law,  Its  Origin 

act  according  to  their  own  independent  sentiments. 
Unvarying  obedience  to  law  we  commend,  but  the 
followers  of  mere  fashion,  or  custom,  are  regarded 
with  a  feeling  akin  to  contempt.  There  are  what  we 
call,  speaking  in  ordinary  language,  bad  customs  and 
habits  (they  are  really  practices  contrary  to  custom), 
and  we  find  it  difficult  to  view  anything  as  in- 
trinsically lofty  and  good  which  so  often  appears 
in  forms  either  indifferent  or  evil. 

What  is  the  reason  of  this  hesitation  and  un- 
willingness ?  Is  it  that  we  assign  too  much  of  worth, 
dignity,  and  elevation  to  law  and  morality,  or  that 
our  ordinary  views  of  custom  are  too  low?  I  am 
sure  that  the  latter  reason  points  towards  the  truth, 
and  it  suggests  a  closer  inquiry  into  the  real  nature 
and  meaning  of  custom.  This  question  lies  beyond 
the  ordinary  subjects  of  legal  discussion,  but  it  is 
one  which  the  Philosophy  of  the  Law  should  attempt 
to  answer. 

What  then  is  wrapped  up  and  concealed  in  the 
word  custom  which  we  so  often  employ,  sometimes 
without  assigning  to  it  especial  importance,  and 
sometimes  regarding  it  as  importing  something 
trivial  or  perhaps  evil?  We  need  but  recall  for  a 
single  moment  the  account  we  have  given  of  it,  in 
order  to  perceive  that  the  ordinary  views  of  it  are 
inadequate  and  erroneous.  That  thing  which  has 
held  imperious  sway  over  the  conduct  of  men  of  all 
races,  whether  savage  or  civilised,  and  in  all  times, 
can  not  be  low,  trivial,  or  evil.  Where  is  the  secret 
of  its  power?  The  simplest  definition  of  custom  is 
that  it  is  the  uniformity  of  conduct  of  all  persons 


Growth  and  Function  123, 

under  like  circumstances,  but  this  suggests  the 
question — "What  is  conduct,  and  what  is  its  cause?" 
To  answer  this  without  indulging  in  speculation,  but 
extending  our  attention  to  all  known  truths  ascer- 
tained by  observation,  whether  of  the  world  of  mind 
or  of  the  external  world,  we  must  avail  ourselves 
of  the  teachings  of  the  science  of  Psychology.  Con- 
duct is  some  physical  movement  of  the  body,  and  is 
invariably  preceded  by  some  thought  or  feeling  which 
is  its  cause;  and  this  thought  or  feeling  is  produced 
by  some  operation  of  surrounding  things — the  en- 
vironment— on  the  nervous  constitution.  Inasmuch 
as  the  constitutions  of  men  in  the  same  society  are 
similar  and  the  environments  similar,  the  thoughts 
must  be  similar  and  the  conduct  consequently  simi- 
lar. Hence  human  conduct  necessarily  presents 
itself  in  the  form  of  similarity — habits  and  customs. 
This  is  true,  not  only  of  man,  but  of  other  races  of 
animals.  The  uniformity,  however,  is  not  absolute. 
There  are  multitudinous  exceptions  and  variations. 
The  original  constitutions  of  men  are  not  precisely 
alike,  nor  are  the  environments  of  men,  even  in  the 
same  locality  and  society,  precisely  alike.  Their 
thoughts  are  to  a  certain  extent  different,  and  the 
acts  consequent  upon  the  thoughts  in  like  manner 
different.  These  differences  are,  for  the  most  part, 
exhibited  in  matters  of  small  importance,  and  do 
not  obstruct  social  harmony.  But  there  are  causes 
and  occasions  which  disturb  social  peace.  This  is 
more  easily  to  be  perceived  in  the  simplicity  of 
primitive  society.  Some  will  have  better  weapons, 
more  skill,  and  greater  strength  and  enterprise  than 


124  Law,  Its  Origin 

others.  Some  will  desire  the  same  things  that 
others  desire  and  to  do  things  which  others  do  not 
wish  to  do.  Hence  collisions  arise,  and  some  are 
irritated  with  the  conduct  of  others,  and  exhibit 
that  irritation  by  retaliation  and  revengeful  punish- 
ment. If  man  lived  in  solitude,  with  no  fellows,  no 
such  collisions  would  happen.  They  are  possible  only 
in  society,  and  there  they  are  inevitable.  They  neces- 
sarily tend  to  violence  and  strife,  and  unless  in  some 
manner  restrained  would  cause  perpetual  private 
war.  Our  nature  supplies  the  correction  for  this 
evil.  Man  seeks  pleasure  and  shrinks  from  pain, 
and  what  he  has  once  seen  to  take  place  he  believes 
will  happen  under  the  like  circumstances  again. 
The  child  does  not  at  first  hesitate  to  thrust  its  hand 
into  the  fire,  but  does  not  make  a  second  attempt. 
The  savage,  at  first,  may  see  no  harm  in  taking  the 
game  another  has  caught,  but  when  he  receives 
punishment  from  the  resentment  of  the  other,  or 
after  he  has  received  it  many  times  and  from  many 
others,  refrains  from  repeating  the  trespass.  Things 
known  to  injure  others  thus  come  to  be  habitually 
avoided,  and  customs  arise  of  carefully  avoiding 
conduct  giving  offence  to  others.  Again,  as  men 
act  in  nearly  all  cases  according  to  custom,  the  ex- 
pectation of  all  is  that  others  will  continue  so  to 
act,  and  any  disappointment  of  this  expectation 
causes  offence  if  the  act  is  of  an  injurious  nature. 
Hence  the  tendency  to  follow  custom  and  to  enforce 
it  upon  others  is  intensified.  Those  who  obey  this 
tendency  are  safe.  Those  who  act  contrary  to  it 
are  pursued  and  punished.  The  worst  offenders  are 


Growth  and  Function  125 

relegated    to    the   criminal   classes,    but   all   incur 
disapproval. 

The  operation  of  the  influences  thus  described  is 
discernible  in  the  earliest  known  displays  of  human 
action.  When  man  made  his  first  appearance  upon 
earth,  he  did  not  wait  until  some  lawgiver  appeared 
to  tell  him  how  he  must  act.  He  asked  no  question 
concerning  what  he  might  and  might  not  do.  He 
was  endowed  with  powers  and  desires  which  de- 
manded activity,  and  he  proceeded  to  act.  The  con- 
sequences of  his  first  action  began  the  formation  of 
a  guide  for  his  future  action,  and  every  succeeding 
exercise  of  his  powers  was  followed  by  consequences 
which  he  observed  and  from  which  he  derived  further 
instruction.  He  learned  that  he  must  not  injure 
or  assail  the  person  of  another.  This  teaching  of 
experience  was  accepted  by  all,  or  nearly  all,  and  the 
great  right  of  personal  security  arose.  He  learned 
that  he  must  not  take  the  fruits  of  another  man's 
labour,  and  under  this  lesson,  taught  to  all,  the 
great  institution  of  private  property  came  into  being. 
His  nature  led  him  to  unite  himself  to  a  woman  and 
to  cherish  her  and  to  care  for  their  offspring,  and  the 
institution  of  the  family  arose.  This  little  society  was 
exposed  to  the  depredations  of  strangers,  and  this 
danger  prompted  a  unison  of  families  into  tribes  in 
order  to  form  a  more  perfect  defence.  He  found  a 
pleasure  in  plenty  of  possessions  and,  instead  of  con- 
suming all  the  fruits  of  his  labour,  sought  to  save 
some.  He  learned  to  postpone  present  enjoyment  to 
a  future  good,  and  wealth,  with  a  division  of  employ- 
ments, increase  of  population,  and  improved  cultiva- 


i26  Law,  Its  Origin 

tion  of  the  earth,  succeeded  to  the  precarious  con- 
dition of  savage  life.  He  found  his  pleasures  and 
his  ambition  centring  more  and  more  in  the  circle 
-of  his  own  fireside  and  extending  to  his  kindred,  and 
thus  began  the  development  of  the  Moral  Sentiment, 
the  original  stimulus  to  the  civilisation  and  refine- 
ment of  the  race.  At  the  same  time  all  these  con- 
sequences of  his  activity  were  having  a  reflex  in- 
fluence upon  himself,  and  became  in  turn  the  causes 
of  the  same  things  of  which  they  were  themselves 
the  consequences.  We  know  from  physical  and 
moral  science  that  all  the  acts  of  man,  including  his 
thoughts,  have  lasting  consequences  affecting  him- 
self. They  not  only  influence  his  future  action,  but 
enter  into  and  modify  his  physical  constitution,  and 
this  effect  is  transmitted  to  his  offspring.  A  man 
is  what  his  thoughts  and  acts  make  him  to  be,  and 
his  posterity  inherit  and  reproduce  his  virtues  and 
his  vices.  Every  virtuous  thought  and  act  tend  to 
make  the  man  better,  and  are  the  parent  of  other 
acts  more  virtuous  still.  As  every  man  knows  to 
some  extent,  consciously  or  unconsciously,  that 
every  one  of  his  acts  will  be  followed  by  consequences 
agreeable  or  injurious  to  himself,  and  will  be  acqui- 
esced in  by  others,  or  excite  their  displeasure,  he 
is  constantly  considering  conduct  and  consequences 
both  in  respect  to  himself  and  to  others.  This  is  the 
great  study  of  life  with  all  classes  at  the  present  time 
and  has  been  such  study  in  all  times.  It  results  in 
tracing  out  a  sphere  of  conduct  within  which  the 
individual  can  move  and  act  with  freedom  and 
security,  and  beyond  which  he  cannot  pass  without 


Growth  and  Function  127 

encroaching  upon  the  like  sphere  of  another  and 
exciting  resentment  with  its  consequences.  If 
society  were  absolutely  stationary,  the  boundaries 
assigning  to  each  his  own  arena  of  action  would 
become  distinct  and  permanent,  but  as  it  is  ex- 
periencing continual  change,  new  conditions,  exciting 
new  thoughts  and  producing  new  forms  of  conduct, 
are  continually  arising  and  introducing  confusion 
into  customs  which  become  gradually  cleared  up 
through  the  action  of  the  same  natural  causes. 
Barbarous  society  is  thus  continually  engaged  un- 
consciously in  the  work  of  accumulating  a  body  of 
custom  embracing  the  wisdom  of  long  experience 
transmitted  from  generation  to  generation,  and  in- 
creased in  the  transmission.  Progressive  societies 
both  unconsciously  and  consciously,  through  the 
works  of  jurists,  legislators,  and  reformers,  pursue 
the  same  study  of  conduct  and  consequence,  selecting 
and  adopting  whatever  conduces  to  well-being, 
eliminating  and  repressing  whatever  is  hurtful.  The 
unconscious  conclusions  of  the  savage,  the  loftiest 
conceptions  and  aspirations  of  the  sage,  controlling 
manners  and  conduct,  affecting  the  physical  con- 
stitution and  passing  as  an  inheritance  to  posterity, 
become  forever  imbedded  in  the  life  of  the  race  and 
express  themselves  in  its  customs.  Custom,  there- 
fore, is  not  the  accidental,  trivial,  and  meaningless 
thing  which  we  sometimes  think  it  to  be.  It  is  the 
imperishable  record  of  the  wisdom  of  the  illimitable 
past  reaching  back  to  the  infancy  of  the  race,  re- 
vised, corrected,  enlarged,  open  to  all  alike,  and 
read  and  understood  by  all.  It  was  a  happy  ex- 


128  Law,  Its  Origin 

pression  of  Lord  Coke  that  the  wisdom  of  the  law 
was  wiser  than  any  man's  wisdom.  The  work  of  the 
jurist  to-day,  the  work  of  all  the  highest  tribunals 
of  enlightened  Europe  and  America,  is  that  same  study 
of  conduct  and  consequence  which  has  been  forever 
engaged  in  by  the  commonest  of  men.  How  poor 
the  conclusions  of  the  wisest  of  lawyers  gathered 
from  their  own  original  reflections  when  compared 
with  those  garnered  up  in  the  actual  customs  of 
life!  And  how  wretchedly  poor  in  comparison  are 
the  written  commands  of  the  Sovereign  State  so  far 
as  they  relate  to  conduct  and  manners,  coloured 
and  affected  as  they  are  with  the  ignorance,  passion, 
and  self-interest  with  which  legislative  bodies  are 
filled!  What  higher  or  more  dignified  conception  of 
the  study  of  the  law  can  there  be  than  to  make  it 
the  task  of  seeking  out,  discerning,  applying,  and 
extending  the  principles  upon  which  those  grand 
generalisations  of  conduct  have  proceeded  which  are 
the  fruit  of  human  experience  extending  through 
countless  ages? 

It  may  be  wondered  why  the  study  of  the  law, 
which  is  the  study  of  conduct  and  consequence,  thus 
prosecuted  from  the  infancy  of  time,  should  have 
left  so  many  problems  still  unsolved,  but  it  must  be 
remembered  that  no  human  actions  are  exact  repe- 
titions, and  each  as  it  occurs  presents  its  own  differ- 
ences, most  of  them  indeed  immaterial,  and  yet 
multitudes  of  them  important.  Life  is  an  ever 
unfolding  spectacle  of  new  transactions  and  phases 
of  conduct,  which  will  forever  demand  the  work 
of  study  and  classification.  Moreover,  as  the- 


Growth  and  Function  129 

moral  nature  becomes  more  sensitive,  men  become 
inclined  to  act  more  and  more  upon  motives  of 
justice  and  benevolence  to  others.  The  impulse  is 
first  felt  by  the  more  cultivated  and  intelligent,  and 
tends  to  spread  in  ever  widening  circles  throughout 
society.  The  higher  forms  of  conduct  ripen  into 
new  customs,  and  men  become  dissatisfied  with  the 
standards  which  the  existing  law  applies.  When 
these  standards  fail  to  conform  to  the  actual  customs 
their  validity  is  challenged,  and  by  degrees  they 
become  discredited  and  overthrown  in  the  courts. 
The  occupation  of  judicial  tribunals  and  lawyers 
lies  not  only  in  solving  new  problems  which  the 
advance  of  time  presents,  but  in  correcting  the  errors 
of  the  past,  or  rather  what  would  be  errors  if  per- 
sisted in — that  is,  in  conforming  the  law  to  the  actual 
custom  of  the  present. 

We  have  now  reached  what  I  conceive  to  be  a  just 
conception  of  the  nature  of  Law  in  its  largest  sense; 
and  this,  not  by  starting  from  any  a  priori  postulate, 
but  from  actual  observation  of  the  causes  and  rules 
by  which  human  conduct  ever  has  been  and  is,  in 
fact,  governed.  The  main  elements  of  this  con- 
ception may  be  thus  summarised: 

(i)  Law  begins  as  the  product  of  the  automatic 
action  of  society,  and  becomes  in  time  a  cause  of  the 
continued  growth  and  perfection  of  society.  Society 
cannot  exist  without  it,  or  exist  without  producing  it. 
Ubi  societas  ibi  lex.  Law,  therefore,  is  self-created 
and  self-existent.  It  is  the  form  in  which  human 
conduct — that  is,  human  lif  e,presents  itself  under  the 
necessary  operation  of  the  causes  which  govern 

9 


130  Law,  Its  Origin 

conduct.  It  is  the  fruit  of  the  myriads  of  concur- 
ring judgments  of  all  the  members  of  society  pro- 
nounced after  a  study  of  the  consequences  of  conduct 
touching  what  conduct  should  be  followed  and  what 
should  be  avoided. 

(2)  Inasmuch  as  conduct  is  necessarily  controlled 
by  previous  thought,   and  such  thought  is  deter- 
mined by  individual  constitution,  that  is,  character, 
and  the  environment,  nothing  can  directly  control 
conduct,  which  cannot  control  both  character  and 
environment.    It  is  not,  therefore,  possible  to  make 
law  by  legislative  action.     Its  utmost  power  is  to 
offer  a  reward  or  threaten  a  punishment  as  a  con- 
sequence of  particular  conduct,  and  thus  furnish  an 
additional  motive  to  influence  conduct.     When  such 
power  is  exerted  to  reinforce  custom  and  prevent 
violations  of  it,  it  may  be  effectual,  and  rules  or 
commands  thus  enacted  are  properly  called  laws; 
but  if  aimed  against  established  custom  they  will  be 
ineffectual.    Law  not  only  cannot  be  directly  made 
by  human  action,  but  cannot  be  abrogated  or  changed 
by  such  action. 

(3)  This  thought,  which  must  necessarily  precede 
all  voluntary  action,  is  employed  in  the  study  of  the 
consequences  of  conduct,  and  so  far  as  concerns  con- 
duct towards  others  (which  is  the  only  field  of  con- 
duct regarded  by  the  law),  it  considers  how  any  con- 
templated conduct  will  fairly  be  received — whether 
with  satisfaction  or  with  displeasure,  whether  with 
acceptance  or  with  opposition;   that  is,  whether  it 
will  comply  with  or  disappoint  a  fair  expectation. 
If  the  contemplated  conduct  is  in  plain  conformity 


Growth  and  Function  131 

to  custom,  or  the  contrary,  the  judgment  is  instan- 
taneous ;  if  it  is  novel,  hesitation  arises  and  careful, 
perhaps  prolonged,  thought  is  given  to  it;  but  the 
thought  is  employed  alone  in  considering  the  con- 
sequences of  the  conduct.  This  is  the  daily  study  of 
life  with  all  men,  and  the  study  of  the  lawyer  differs 
from  it  only  in  being  pursued  scientifically  by  an 
expert. 

(4)  Since  conformity  to  custom  is  the  necessary 
form  which  human  conduct  assumes  in  social 
dealings,  it  is  the  only  just  and  right  form.  No  other 
standard  can  be  erected  over  it. 

The  raison  d'etre  of  law,  the  function  it  discharges 
in  the  social  organism,  has  already  in  great  part 
been  indicated ;  but  the  importance  of  a  clear  com- 
prehension of  this  justifies  a  little  more  extended 
treatment,  for  how  can  the  work  of  legislation,  which, 
in  the  modified  sense  already  indicated,  is  the  making 
of  law,  be  well  performed  unless  the  function  of  all 
law  be  well  understood  ? 

In  considering  the  function  of  law  we  are  looking 
at  it  in  its  dynamical  aspect  as  an  operative  force. 
Statistically  regarded  law  is  custom,  when  dynami- 
cally it  is  the  force  acting  in  harmony  with  custom 
and  compelling  obedience  to  it.  What  is  the  service 
which  that  force  performs  in  the  social  organism,  or 
rather  what  is  the  ultimate  good  at  which  it  aims? 
Primarily  we  know  that  obedience  to  custom  en- 
forced by  law  is  a  necessary  condition  to  the  existence 
of  society,  but  society  is  not  in  itself  an  ultimate 
good;  it  is  but  a  part  in  the  scheme  which  looks  to 
the  good  of  its  members,  to  the  good  of  the  indi- 


132  Law,  Its  Origin 

viduals  who  compose  the  race.  Have  we  any  means 
of  knowing  what  the  ultimate  individual  good  is,  so 
far  as  conduct  is  concerned  ? 

Going  back  to  fundamental  principles  we  find 
happiness  to  be  "our  being's  end  and  aim,"  but  in 
what  line  of  conduct  is  the  greatest  happiness  to  be 
found?  We  have  seen  that  it  is  not  in  immediate 
enjoyment,  but  that  we  often  find  a  larger  aggregate 
of  happiness  in  postponing  present  enjoyment  for 
more  distant  and  wider  results.  These  more  distant 
results  we  may  find  to  be  desirable  only  because 
they  are  useful  in  securing  results  more  distant  still. 
Is  there  any  final  result,  or  condition,  which  we  may 
pronounce  to  be  good  in  itself,  and  at  which  we  may 
aim  as  being  the  ultimate  good,  the  summum  bonum? 
Mr.  Herbert  Spencer  gives  an  answer  to  this  question 
which  seems  to  me  to  be  more  agreeable  to  reason 
than  any  other.  He  regards  the  solution  to  rest  in 
the  answer  to  the  question  whether  life  itself  is  a 
blessing.  Whoever  thinks  it  is  not  a  blessing,  can 
find  no  real  happiness  anywhere.  He  is  a  pessimist 
and  must  welcome  annihilation,  as  bringing  an  end 
to  present  misery.  But  there  are  no  real  pessimists, 
at  least  among  the  sane.  Life  is  a  condition  to  which 
all  cling,  and  for  which  most  other  things  will  be 
sacrificed.  And  if  life  itself  is  the  supreme  desire, 
the  largest  and  completest  life  must  be  the  nearest 
approach  to  pure  happiness ;  not  indeed  that  momen- 
tary pleasure  which  accompanies  the  activity  of  any 
particular  desire  or  passion,  but  that  greatest  aggre- 
gate sum  of  pleasures  which  is  the  fruit  of  the  activity 
of  all  the  powers  of  life. 


Growth  and  Function  133 

Of  the  conditions  necessary  to  enable  the  individ- 
ual to  attain  this  object  I  name,  without  fear  of 
contradiction,  as  the  first,  Liberty,  the  choicest  of 
human  blessings ;  and  I  define  Liberty  as  being  the 
permission  or  power  to  do  what  one  pleases  to  do 
without  any  external  restraint.  Self-restraint  we 
must  continually  exercise,  and  the  practice  of  it  is 
a  means  of  the  highest  self -improvement ;  but  if  one 
may  do  all  he  wishes  to  do  without  fear  of  external 
punishment  or  sacrifice  he  may  be  said  to  enjoy 
perfect  liberty.  He  is  then  his  own  master.  He 
then  perceives  the  inevitable  connection  between 
his  conduct  and  its  consequence,  recognises  the  fact 
that  the  pleasure  or  the  suffering  he  experiences  are 
rewards  or  punishments  gained  or  suffered  by  him- 
self. He  is  then  in  a  condition  which  he  cannot 
otherwise  enjoy,  of  working  out  that  ultimate 
destiny  which  is  in  harmony  with  universal  devel- 
opment and  progress. 

It  is  manifest,  however,  that  no  such  unrestricted 
liberty  can  be  enjoyed  in  society.  The  primeval 
savage  found  that  others  desired  the  possession  of  the 
thing  which  was  within  his  grasp,  that  he  sometimes 
wished  the  exclusive  enjoyment  of  what  others 
possessed,  and  that  moral  struggles  were  thus  pro- 
duced which  aroused  mutual  resentments  and  con- 
sequent punishments,  given  and  received.  He 
learned  to  refrain  from  exciting  the  resentment  of 
others,  taught  others  to  refrain  in  like  manner,  and 
custom  thus  fostered  and  enforced  became  the 
beginning  of  law.  The  direct  and  necessary  tend- 
ency of  this  restraint  was  to  trace  out  boundary 


134  Law,  Its  Origin 

lines  of  individual  action  within  which  each  person 
might  freely  move  without  exciting  the  opposition 
of  others.  Here  we  find  exhibited  in  its  earliest  and 
simplest  form  the  function  of  the  law.  It  is  to 
distinguish  and  separate  the  things  which  each 
individual  may  do  or  enjoy  from  the  things  which 
he  may  not  do  or  enjoy  without  invading  the  equal 
liberty  of  others ;  and  when  this  is  done  the  nearest 
approach  to  perfect  liberty  is  reached.  And  if  we 
look  at  the  operation  of  the  law  under  the  complex 
conditions  of  modern  enlightened  life  we  reach  the 
same  result.  If  we  scrutinise  the  proceedings  in  any 
judicial  controversy  we  shall  find  that  it  turns  upon 
the  examination  of  some  particular  piece  of  conduct 
to  determine  whether  it  is  within  the  rightful  sphere 
of  individual  action.  The  study  of  the  consequences 
of  conduct  prosecuted  through  countless  ages  has 
been  animated  by  no  other  purpose  and  has  had  no 
other  effect  than  to  gather  together  and  consolidate 
in  the  life  of  the  race  that  vast  body  of  knowledge 
which  sometimes  consciously,  but  more  often  un- 
consciously, instructs  us  what  we  may  do  without 
disappointing  the  fair  expectations  and  provoking 
the  opposition  of  others.  The  great  German  philos- 
opher Kant,  assuming  to  proceed  by  an  a  priori 
inquiry  reached  the  same  conclusion  and  made  this 
his  definition  of  law :  ' '  The  sum  total  of  the  conditions 
under  which  the  personal  wishes  of  one  man  can  be 
combined  with  the  personal  wishes  of  another  man 
in  accordance  with  a  general  law  of  freedom"  and 
Savigny,  after  an  inductive  inquiry,  more  clearly 
expresses  the  same  conclusion  in  his  definition: 


Growth  and  Function  135 

"The  rule  whereby  the  invisible  border-line  is  fixed 
within  which  the  being  and  the  activity  of  each 
individual  obtains  a  secure  and  free  space." 

But  the  boundary  line  of  individual  action  marks 
out  not  only  the  limits  beyond  which  other  indi- 
viduals must  not  pass,  but  also  the  limits  which  the 
state  in  its  corporate  capacity  must  not  pass,  and  so 
in  determining  the  true  function  of  law  we  also 
determine  the  true  province  of  legislation.  Society 
has  an  organised  power  which  is  usefully  exerted 
only  for  the  purpose  of  assisting  man  in  working  out 
his  destiny.  This  power  operating  externally  pro- 
tects society  against  its  enemies;  its  function  in  its 
internal  operation  is  to  insure  the  enforcement  of  law, 
that  is  of  custom,  and,  so  long  as  it  confines  itself  to 
its  true  province,  to  make  still  more  clear  those 
boundary  lines  of  individual  action  the  observance 
of  which  is  the  supreme  guaranty  of  Liberty.  Any 
law  which  has  an  effect  beyond  that  of  maintaining 
these  lines,  is  by  so  much  an  encroachment  upon 
just  liberty,  and  as  that  liberty  is  the  choicest  of 
blessings  so  that  encroachment  is  the  worst  of  woes ; 
and  whether  it  is  made  by  the  decree  of  an  absolute 
monarch  or  by  the  regular  enactment  of  the  legis- 
lature of  a  democratic  government,  is,  alike  in  either 
case,  what  we  denominate  by  the  word  Tyranny. 
But  I  will  not  here  disparage  the  high  office  of  legis- 
lation by  pointing  out  the  evil  which  flows  from  it 
whenever  it  departs  from  its  just  province  and  invades 
the  domain  of  Liberty.  Within  its  province  it  is 
capable  of  a  work  of  great  and  increasing  beneficence. 
It  is,  even  more  than  the  work  of  the  judge,  the 


136       Law:  Origin,  Growth,  and  Function 

conscious  activity  of  society  to  improve  its  condition 
by  improving  its  laws.  In  the  order  of  succession 
this  activity  follows  the  work  of  the  judge.  Custom 
first  operates  unconsciously  to  produce  law.  In  a 
further  stage  of  social  advancement,  society  becomes 
an  organised  power  and  consciously  exerts  itself  to 
aid  and  perfect  the  development  of  law.  Finally  it 
comes  to  do  what  the  judiciary  from  its  inability 
to  break  suddenly  from  the  past  and  from  its  limited 
capacity  to  continue  political  instrumentalities  for 
the  enforcement  of  custom  is  unable  to  do,  not  to 
make  law,  but  to  make  rules  relating  to  law,  as  well 
as  the  complex  machinery  which  the  practical  ad- 
ministration of  law  by  the  state  requires.  Here  is 
a  task  the  proper  performance  of  which  taxes  the 
highest  capability  of  the  intellect  of  man.  It  is  here 
that  the  so-called  great  law-givers  of  the  world 
have  earned  their  glory.  Moses  and  Solon  tower 
above  the  great  captains  of  their  times.  "The  vain 
titles  of  the  victories  of  Justinian  are  crumbled  into 
dust,  but  the  name  of  the  legislator  is  inscribed  upon 
a  fair  and  everlasting  monument."  But  I  must 
reserve  the  subject  of  legislation  for  a  separate  and 
more  particular  treatment. 


LECTURE  VI. 

OUR  scrutiny  into  the  causes  which  govern  human 
conduct,  while  it  has  led  us  to  the  conclusion 
that  custom  is  the  principal  one,  at  least  so  far  as 
our  relations  with  each  other  are  affected,  and  the 
only  one  which  the  unwritten  law  regards,  has  in- 
cidentally informed  us  that  the  law,  whether  written 
or  unwritten,  does  not  attempt  to  enforce  custom 
always  and  universally,  and  common  observation 
equally  apprises  us  that  there  is  a  part  of  the  field  of 
conduct  of  which  the  law  for  some  reason  takes  no 
notice,  and  which  is  yet,  in  great  part,  though  not 
wholly,  under  the  control  of  custom.  We  cannot  fully 
understand  the  nature  and  function  of  law,  without 
including  the  whole  field  within  the  limits  of  our 
inquiry,  and  ascertaining  what  part  of  it  lies  beyond 
the  scope  of  the  law  and  the  reasons  which  underlie 
the  limitations  which  the  law  imposes  upon  its  own 
activity.  It  is  thus  that  some  consideration  of  the 
subject  of  Morality  becomes  pertinent  to  our  main 
inquiry.  No  one  can  become  a  thorough  lawyer 
without  an  intelligent  comprehension  of  the  general 
subject  of  Ethics,  nor,  let  me  add,  without  a  fixed 
and  constant  sense  of  the  personal  obligation  to 
conform  his  own  life  to  the  rules  which  the  study  of 
Ethics  reveals. 

137 


Law,  Its  Origin 

That  part  of  conduct  to  which  I  now  call  atten- 
tion as  being  controlled  by  custom,  without  the  aid 
of  law,  is  that  which  relates  to  what  are  usually 
regarded,  whether  properly  or  not,  as  the  smaller 
affairs  of  life,  the  less  important  intercourse  of  men 
with  each  other  in  society,  and  which  is  subject  to 
social  rules.  We  have  found  that  the  rules  which 
the  law  sanctions  require  our  obedience  to  custom 
because  otherwise  there  would  be  incessant  strife 
and  violence;  that  is  to  say,  that  obedience  to  so 
much  of  custom  is  a  necessary  condition  to  the 
existence  of  society.  It  would  seem  to  follow,  there- 
fore, that  if  there  be  any  part  of  social  conduct 
which,  though  not  involving  the  existence  of  society, 
yet  affects  in  a  material  degree  the  comfort  and 
enjoyment  of  it, — and  there  is  a  large  field  of  such 
conduct, — it  also  ought  to  be  under  the  dominion  of 
custom.  This  we  find  by  observation  to  be  true. 
If  I  am  invited  to  a  dinner  party,  and  accept  the 
invitation,  I  am  bound  to  keep  the  engagement,  and 
this  obligation,  though  I  cannot  be  held  answerable 
to  the  law  for  its  violation,  is  enforced  by  sanctions 
sometimes  more  powerful  than  those  of  the  law.  All 
that  the  law  can  do  to  enforce  its  obligations  is  to 
annex  to  the  violation  of  them  undesirable  con- 
sequences; but  to  the  violation  of  some  merely  social 
obligations  society  sometimes  attaches  consequences 
much  more  feared.  The  offender  seriously  disappoints 
the  expectations  of  his  friend,  excites  his  displeasure, 
and  perhaps  forfeits  his  friendship.  The  circle  of  his 
friends  participate  in  the  displeasure,  withdraw  their 
courtesies  from  him,  and  continued  repetition  of  the 


Growth  and  Function  139 

offence  would  bring  upon  him  social  ostracism. 
There  are  numerous  offences  against  social  custom 
which  are  punished  in  like  manner.  A  man  must 
not  appear  shabbily  dressed,  or  in  a  state  of  intoxi- 
cation, or  set  a  bad  example.  Offences  like  these 
disappoint  expectation  and  create  in  others  irritation 
and  resentment.  The  ordinary  rules  of  etiquette 
and  fashion  obtaining  in  social  circles  have  a  similar 
foundation  and  sanction.  Social  customs  like  these 
are  often  spoken  of  depreciatingly  as  merely  con- 
ventional, or  capricious,  or  whimsical.  They  do 
indeed  differ  greatly  in  importance  from  those  of 
which  the  law  takes  notice,  and  very  different  degrees 
of  culpability  are  attached  to  the  violation  of  them. 
Such  obligations,  however,  are,  in  their  nature,  the 
same  as  those  of  the  law,  the  difference  being  in  the 
rigour  with  which  they  are  enforced.  Where  vio- 
lations of  custom  are  calculated  to  excite  such  irri- 
tation and  displeasure  as  to  provoke  violence  and 
perhaps  bloodshed  they  are  destructive  of  society, 
and  the  repression  of  them  becomes  necessary  to 
social  existence.  Society  must  apply  to  this  repres- 
sion its  most  effective  compulsory  force,  and  this  in 
civilised  States  is  furnished  by  organised  and  regular 
law;  but  those  offences  which  simply  impair  the 
comfort  and  pleasure  of  society  are  left  to  be  re- 
pressed by  the  spontaneous  action  of  social  opinion 
operating  in  the  ways  I  have  indicated.  The  func- 
tions also  of  this  social  discipline  are  the  same  with 
those  of  the  law,  namely,  to  secure  to  every  one  the 
free  permission  to  do  all  he  wishes  to  do  without 
encroaching  upon  the  like  liberty  in  others.  Conduct 


Law,  Its  Origin 

by  one  person  which,  though  it  does  not  injure 
another  either  in  his  person  or  property,  yet  offends 
his  feelings,  is  an  invasion  of  his  personal  sphere 
within  which  all  wish  to  be  secure  from  intrusion, 
and  such  security  is  necessary  to  the  equal  freedom 
of  all.  Social  discipline  and  punishment  begin,  long 
before  the  law  is  reached,  with  all  offences.  Where 
the  force  of  regular  law  is  applied  it  is  directed 
against  those  of  greater  magnitude,  leaving  the  others, 
however,  to  be  still  enforced  by  custom.  These  two 
modes  of  discipline  are  alike  also  in  this:  the  sanc- 
tions of  each — that  is,  the  forces  which  compel 
obedience — are  external.  They  are  not  like  the 
promptings  of  what  we  call  conscience.  I  do  not 
mean  that  conscience  does  not  ordinarily  enjoin 
obedience  to  law  or  social  opinion, — undoubtedly  it 
does;  but  it  does  not  necessarily  do  so;  indeed  it 
sometimes  enjoins  disobedience.  Some,  while  agree- 
ing that  we  are  bound  to  conform  to  custom  so  far 
as  the  law  enjoins  it,  may  not  be  inclined  to  concede 
the  view  that  a  like  moral  obligation  exists  to 
follow  custom  even  when  it  is  not  enforced  by  legal 
sanctions.  They  have  the  feeling  that  it  is  best,  so 
far  as  possible,  for  each  one  to  determine  what  is 
right  and  to  do  that,  rather  than  conform  to  a  mere 
social  standard.  I  will  not  stop  here  to  inquire 
whether  there  is  any  such  thing  as  absolute  right,  or 
in  what  it  consists.  I  think  it  true  that  we  all  have 
a  certain  feeling  that  there  is  such  a  thing  as  right  in 
itself,  and  however  difficult  it  may  be  to  define  it, 
such  difficulties  do  not  detract  from  the  dignity 
and  importance  of  the  sentiment.  Those  to  whom 


Growth  and  Function  141* 

I  refer  perceive,  what  is  indeed  true,  that  the  dic- 
tates of  custom,  whether  enforced  by  law  or  not, 
are  of  a  conventional  nature,  and  they  are  therefore 
inclined  to  deem  them  of  less  weight,  and  especially 
is  this  the  case  when  they  find,  as  they  occasionally, 
and  perhaps  often,  must,  that  they  are  not  in  har- 
mony with  their  views  of  what  is  intrinsically  right. 
They  feel  some  hesitancy  in  determining  what  con- 
duct to  pursue  when  custom  points  in  one  direction 
and  conscience  in  another.  That  there  is  at  times- 
a  real  opposition  here  is  doubtless  true,  and  I  am 
one  of  those  who  believe  that  the  command  of  con- 
science in  such  cases  should  be  obeyed;  but  it 
should  be  the  true  voice  of  conscience,  and  not  what 
it  is  apt  to  be,  that  of  ignorance,  self-conceit,  or 
obstinacy.  What  I  wish  to  point  out,  in  the  first 
place,  is  that  custom,  however  conventional,  does 
in  nearly  every  case  dictate  what  is  just,  according 
to  the  common  sense  of  justice.  I  start  with  the 
assumption,  which  every  one  must  concede,  that 
human  society  is  the  necessary  product  of  the  human 
constitution.  If  we  consult  our  own  consciousness 
we  find  that  we  are  so  made  that  we  cannot  live 
except  in  society,  and  observation  teaches  that  man 
is  nowhere  to  be  found  living  in  any  other  condition. 
Whatever  is  necessary  in  the  scheme  of  the  universe 
must  be  right,  and  society  therefore  is  right  and 
necessary,  and  what  is  necessary  to  society  is,  in 
itself,  necessary  and  right.  Now,  if  in  coming  into 
society  each  individual  should  deem  himself  obliged 
to  pursue  that  conduct,  and  that  alone,  which  he 
deemed  to  be  intrinsically  right  in  itself,  and  should. 


Law,  Its  Origin 

act  accordingly,  he  would  find  that  he  was  con- 
tinually disappointed  in  the  conduct  of  others 
affecting  himself,  and  that  others  were  alike  dis- 
appointed in  his  action  affecting  them,  for  it  is 
certain  that  their  notions  of  what  was  intrinsically 
right  would  not  agree.  Some  would  be  better  edu- 
cated than  others,  and  would  reject  the  standards 
which  others  would  adopt.  Some  would  be  misled 
by  vanity,  or  other  faults,  much  more  than  others. 
In  short,  there  would  be  every  variety  of  difference 
of  opinion,  and  consequently,  every  variety  of  action. 
If  these  differences  were  impartially  weighed  they 
would  generally  be  found  not  to  be  of  much  moment, 
but  such  is  the  effect  of  vanity  and  obstinacy  that, 
in  the  eyes  of  the  individuals,  they  are  magnified 
and  assume  an  undue  importance.  Disputes  and 
collisions,  with  the  consequent  disappointments 
and  irritations,  would  mark  all  social  intercourse,  and 
greatly  impair  that  harmony  essential  to  the  happi- 
ness and  benefit  of  society.  Nothing  but  law  would 
prevent  bloodshed  and  violence,  and  such  dissension 
as  the  law  did  not  assume  to  restrain  would  widely 
prevail.  It  is  therefore  manifest  that  some  rule 
other  than  the  individual  sense  of  right  should  be 
adopted  for  the  government  of  conduct  in  that  field 
not  occupied  by  the  law.  The  notion  that  each  indi- 
vidual should  be  left  to  follow  the  dictates  of  his  own 
conscience  must  be  at  once  abandoned.  What  sub- 
stitute can  be  found  ?  It  might  be  suggested  that  a 
few  of  the  wisest  and  best  might  be  selected  to  frame 
rules,  but  they  would  inevitably  frame  such  rules 
as  would  accord  with  their  individual  notions,  and 


Growth  and  Function  143 

to  impose  them  upon  others  who  did  not  happen  to 
agree  to  them  would  be  mere  tyranny,  and  defensible 
only  because  it  seemed  to  be  necessary.  Moreover, 
how  could  any  human  beings,  however  good  and 
wise,  frame  rules  which  would  serve  to  govern  those 
infinitely  numerous  and  varied  acts  which  make  up 
the  ordinary  intercourse  of  social  life,  and  how  could 
the  rules  be  learned  ?  This  is  manifestly  impossible. 
If  it  were  possible  that  a  body  of  rules  could  be 
framed  by  the  equal  voice  of  all,  which  would 
represent  the  average  beliefs  and  sentiments  of  all, 
with  a  certainty  which  all  would  admit,  and  it  could 
be  perfectly  learned,  it  would  seem  to  be  an  ex- 
pedient as  good  as  could  be  desired.  What  is  needed 
is  an  ever-present  guide  informing  us  instantly  how 
to  act  without  stopping  to  think. 

Inasmuch  as  every  one  of  our  acts  is  preceded  and 
caused  by  a  thought,  a  man's  conduct  is  the  unerring 
evidence  of  those  thoughts.  Customs,  therefore, 
being  common  modes  of  action,  are  the  unerring 
evidence  of  common  thought  and  belief,  and  as  they 
are  the  joint  product  of  the  thoughts  of  all,  each  one 
has  his  own  share  in  forming  them.  In  the  enforce- 
ment of  a  rule  thus  formed  no  one  can  complain,  for 
it  is  the  only  rule  which  can  be  framed  which  gives 
equal  expression  to  the  voice  of  each.  It  restrains 
only  so  far  as  all  agree  that  restraint  is  necessary. 
It  is  the  reign  of  liberty,  for  it  gives  to  each  individual 
the  largest  possible  area  in  which  he  can  move  and 
act  with  unrestricted  freedom.  This  discipline  is 
the  source  of  the  courtesy,  deference,  politeness, 
and  all  the  graces  of  social  life.  Moreover  it  has 


i44  Law,  Its  Origin 

the  same  supreme  excellence  which  belongs  to  the 
enforced  rules  of  law.  It  is  a  growth  beginning  like 
the  law  far  back  in  the  early  stages  of  civilisation, 
cultivated  by  the  contributions  of  wisdom  and 
experience,  the  final  result  of  the  combined  efforts  of 
society  to  select  and  retain  what  is  beneficial,  and 
reject  what  is  hurtful.  Manifestly  rules  thus  framed 
must  be  superior  to  any  which  the  wit  of  particular 
men  could  devise.  They  are  not  indeed  perfect,  and 
as  they  are  the  product  of  the  average  thought,  must 
change  as  that  thought  changes — that  is,  as  the  moral 
sentiment  expands  and  develops. 

There  still  remains  another  division  of  the  field  of 
conduct  which  I  have  not  as  yet  touched.  It  is  one 
over  which  custom,  whether  alone  or  reinforced  by 
law,  asserts  no  jurisdiction.  It  is  where  man  enjoys 
absolute  freedom  from  external  control.  Inasmuch 
as  custom  dictates  what  we  must  do  in  that  part  of 
our  conduct  affecting  the  existence,  good  order,  and 
comfort  of  society,  if  there  be  any  part  of  conduct 
which  does  not  involve  the  welfare  of  others, 
there  interference  should  stop,  and  man  be  left 
absolutely  free.  I  do  not  mean  that  he  should  be 
free  in  the  sense  of  being  no  longer  governed  by  a 
regard  to  the  consequences  of  his  conduct,  but  free 
so  far  as  respects  external  control.  The  great  law  of 
causation,  as  supreme  in  the  moral  as  in  the  physical 
world,  here  operates  to  attach  to  every  action  its 
inevitable  consequences,  and  this  supplies  motives 
and  influences  conduct;  but,  aside  from  this,  man 
is  here  free.  This  is  the  world  of  personal  and 
individual  life,  not  less  interesting  than  that  of  social 


Growth  and  Function  145 

life.  It  covers  conduct  so  unimportant  or  so  trivial 
that  it  is  not  worth  while  for  others  to  concern  them- 
selves with  it,  as  what  a  man  eats,  or  drinks,  or  wears, 
what  occupations  he  follows,  what  amusements  he 
enjoys,  what  society  he  prefers ;  these  are  his  concern 
alone.  It  covers  also  conduct  too  lofty  and  serious 
to  be  graduated  by  an  average  which  would  destroy 
individuality  and  bring  all  men  to  a  common  level. 
A  man  must  practise  so  much  of  justice,  charity, 
sympathy,  and  benevolence,  as  others  may  fairly 
expect  of  him,  but  while  he  must  not  display  less, 
others  will  not  complain  if  he  displays  more.  He 
must  be  a  good  citizen  and  neighbour ;  he  may  be  a 
conspicuous  blessing  to  his  race. 

What  is  the  rule  which  here  regulates  our  lives? 
In  considering  that  part  of  our  conduct  which  con- 
cerns others,  I  have  sought  to  discover  those  rules 
only  which  actually  regulate  conduct,  not  those  which 
ought  to  regulate  it.  Science  asks  primarily  only 
what  is,  not  what  ought  to  be.  So  the  question  here 
is  what,  in  fact,  regulates  our  personal  and  individual 
life,  not  what  ought  to  regulate  it,  although  I  imagine 
that  the  rule  which  will  be  found  in  fact  to  exist,  is 
the  best.  If  there  be  any  rule,  it  must  be  one 
founded  in  the  nature  of  man,  and  we  cannot  change 
it  if  we  would;  and  necessarily — so,  at  least,  we 
must  admit — it  must  be  the  best  possible  rule. 

In  answering  the  question  I  must  take  a  step  fur- 
ther back  than  I  have  yet  taken  towards  the  origin 
and  cause  of  all  conduct.  The  all-pervading  law  of 
causation  teaches  us  that  for  every  act  there  is  a 
cause,  and  the  cause  of  every  voluntary  act  is  what 


146  Law,  Its  Origin 

we  call  a  motive.  Conduct  of  necessity  obeys  the 
strongest  motive,  and  if  we  perfectly  knew  in  the 
case  of  any  individual  what  his  constitution — that  is, 
his  character — was,  and  what  the  surrounding  attrac- 
tions and  repulsions  presenting  themselves  to  his 
mind  were,  we  could  with  certainty  predict  his 
action.  I  shall  not  attempt  to  solve  any  of  the 
puzzles  presented  by  the  speculations  concerning 
the  freedom  of  the  will,  but  that  we  do  in  fact  act 
in  obedience  to  the  strongest  motive  is  a  truth  made 
evident  by  all  human  experience.  If  we  wish  to 
induce  any  one  to  do  a  particular  act,  we  know  of 
no  means  to  that  end  except  the  furnishing  to  him 
of  something  which  will  create,  or  strengthen,  in 
him  some  motive  to  do  it.  Even  custom  has  no 
power  by  which  it  can  compel  a  man  actually  to  do 
anything.  It  can,  by  creating  the  fear  of  legal 
punishment  or  of  adverse  opinion,  induce  him  to  do, 
or  to  refrain  from  doing ;  but  this  is  simply  supplying 
a  motive;  and  the  most  dreaded  punishments  of 
the  law  or  of  social  opinion  are  effective  only  so  far 
as  they  create  an  efficient  motive.  And  all  motives 
are,  at  the  last  analysis,  of  the  same  nature  with  all 
men.  They  all  resolve  themselves  into  the  simple 
desire  to  enjoy  pleasure  or  happiness  and  to  escape 
pain.  The  debauchee  who  plunges  into  sensual  excess, 
and  the  lone  ascetic  who  seeks  to  mortify  every 
appetite  with  the  scourge,  the  youth  struggling  for 
the  Olympian  wreath,  or  the  martyr  at  the  stake, 
are  alike  animated  by  the  same  motive — to  experi- 
ence pleasure,  or  to  avoid  a  greater  pain.  But  how 
different  the  consequences  of  the  conduct  of  different 


Growth  and  Function  147 

men  who  yet  act,  and  who  cannot  help  acting,  from 
the  same  motive!  One  man  thinking  of  nothing  but 
the  pleasures  of  the  flowing  bowl  commits  excess, 
and  awakens  from  debauch  to  find  himself  an  object 
of  pity  or  contempt  to  his  friends  and  of  self-disgust. 
Another  thinks  of  next  morning's  headache,  observes 
moderation,  and  awakens  after  his  sleep  happy  and 
ready  for  the  duties  of  the  coming  day.  What 
makes  this  difference  between  the  preferences  which 
have  shaped  conduct  in  these  two  instances?  I 
apprehend  that  it  is  just  this;  that  one  thought 
only  of  the  pleasure  coming  immediately  from  indul- 
gence, while  the  other  looked  further  to  the  more 
distant  consequences  of  conduct,  •  saw  pain  to  be 
avoided  and  other  pleasures  to  be  enjoyed  by  modera- 
tion, and  in  order  to  gain  what  would  be,  on  the 
whole,  a  greater  sum  of  pleasure,  postponed  a  present 
enjoyment  to  a  future  good,  and  practised  self- 
restraint.  He  looked  beyond  the  immediate  to  the 
more  distant  consequences  of  conduct,  and  governed 
his  own  action  by  a  regard  for  them,  and  found 
therein  a  greater  sum  of  pleasure. 

We  here  reach  a  thought  upon  which  we  cannot 
dwell  with  too  much  attention.  Here  is  the  respect 
in  which  man  stands  above  the  brute  creation. 
Some  of  the  lower  animals  do  indeed  store  food  in 
harvest-time  for  subsistence  in  winter;  but  I  know 
of  no  other  instance  in  which  they  practise  self- 
restraint, — if  indeed  they  do  so  here,  for  perhaps 
they  do  not  lay  away  food  until  immediate  appetite 
is  fully  satisfied;  and  so  much  is  necessary  for  the 
preservation  of  the  species.  The  provident  conduct 


148  Law,  Its  Origin 

stops  there.  It  is  also  the  respect  in  which  some 
men  stand  in  supremacy  over  others,  and  the  su- 
premacy is  in  the  proportion  in  which  they  exercise 
self-restraint.  It  is  also  the  prime  respect  in  which 
civilisation  rises  above  barbarism.  The  savage  cap- 
tures wild  game  sufficient  to  satisfy  the  immediate 
demands  of  his  appetite,  and  then  sinks  to  ignoble 
ease,  or  indulges  his  brute  and  warlike  passions. 
The  civilised  man  undergoes  what  with  other  pur- 
poses would  be  painful  labour,  and  gathers  a  supply 
more  than  enough  to  sustain  himself  and  his  family, 
and  employs  the  surplus  in  improving  his  habitation, 
procuring  better  clothing,  providing  means  by  which 
he  may  better  enjoy  his  leisure,  not  only  in  making 
himself  and  his  family  happy,  but  in  creating  a  scene 
of  happiness  about  him.  Man  here  acts  in  obedience 
to  immutable  laws.  He  is  impelled  by  nature  to 
seek  happiness.  He  finds  that  conduct  in  one  direc- 
tion is  the  source  of  happiness,  in  another  of  misery. 
The  consequences  which  he  has  seen  to  flow  from 
a  line  of  conduct  he  expects  to  repeat  themselves 
if  the  conduct  is  repeated.  Moreover,  his  disposition 
to  obey  these  teachings  is  strengthened  and  ad- 
vanced by  growing  and  developing  moral  sentiment. 
He  finds,  at  first,  his  happiness  increased  in  the 
narrow  circle  of  his  family  and  home,  then  his  regard 
and  interest  extend  farther,  and  he  finds  increased 
happiness  in  the  enjoyment  of  his  friends  and 
society.  His  sympathies  become  developed  and 
enlarged,  and  elevate  and  enlarge  his  standard  of 
conduct,  and  lead  him  to  take  within  its  range 
broader  and  broader  circles,  and  to  this  result  of 


Growth  and  Function  149 

the  alternate  action  and  reaction  between  the 
sympathetic  and  the  intellectual  nature  there  is  no 
end  until  it  is  recognised  that — 

"All  are  but  parts  of  one  stupendous  whole." 

And  the  habits  thus  engendered  of  seeking  the 
more  remote  and  wider  good  tend  to  rob  that  pur- 
suit even  of  the  pain  of  self-restraint  and  convert  it 
into  a  pleasure.  An  object  repeatedly  pursued  for 
the  sake  of  the  pleasure  it  eventually  brings  becomes 
loved  for  its  own  sake,  and  the  ultimate  pleasure  in 
the  end  is  sunk  in  the  present  enjoyment  of  the 
means,  and  thus  real  happiness  is  found  to  consist 
in  the  well  directed  activity  of  our  powers.  How 
true  this  is  in  the  pursuit  of  knowledge  we  all  know. 
"If,  "  says  Malebranche,  "I  held  truth  captive  in  my 
hand  I  would  let  it  fly,  in  order  that  I  might  again 
pursue  and  capture  it."  * 

Does  man  in  thus  forbearing  to  gratify  immediate 
desire  and  practising  self-restraint  in  order  to  gain 
a  more  distant,  but  larger,  good  obey  a  rule  ?  I  con- 
ceive that  he  does.  A  rule  is  something  obedience 
to  which  implies  the  pain  of  self-restraint,  which  is 
a  real  pain,  at  least  until  obedience  to  the  rule  has 
become  so  habitual  and  full  of  reward  as  to  be  trans- 
formed into  a  pleasure.  If  man  simply  yielded  his 
conduct  to  the  attractions  of  immediate  enjoyment 
without  regard  to  the  ultimate  consequences,  pleas- 
ure would  be  the  end  of  his  conduct,  but  we  could 
not  properly  declare  it  to  be  the  rule.  We  should 
rather  say  that  the  man  acted  without  rule.  But 

1  Hamilton's  Lectures  on  Metaphysics,  Boston,  Lecture  I.  p.  9. 


i5°  Law,  Its  Origin 

all  men,  except  the  utterly  bad  (if  there  are  such), 
find  that,  in  order  to  gain  the  largest  sum  of  that 
which  they  universally  and  constantly  seek,  namely, 
pleasure,  they  must  scrutinise  the  consequences  of 
conduct  and  follow  that  line  of  action  which,  on  the 
whole,  is  calculated  to  procure  for  them  the  largest 
measure  of  happiness;  and  the  more  civilised  and 
enlightened  they  are,  the  more  they  feel  bound  to 
make  this  scrutiny,  and  to  follow  the  conclusions 
to  which  it  leads,  even  though  it  compels  some  self- 
sacrifice,  self-restraint,  and  pain.  Here  is  a  rule, 
and  an  actually  existing  rule  which  men,  or  the  bulk 
of  them,  really  observe  not  completely  and  in  all 
instances,  for  they  frequently  violate  it,  but  it  is 
none  the  less  a  rule.  The  law  and  custom  are  fre- 
quently violated,  but  they  nevertheless  remain 
rules.  This  contemplation  of  the  probable,  or 
certain,  consequences  of  our  conduct  is  obviously 
the  mere  exercise  of  what  is  called  our  reason.  It  is 
the  endeavour  to  know  what  will  happen  in  the 
future  by  considering  what  has  happened  under  like 
circumstances  in  the  past,  and  the  rule  of  which  I 
speak  is  a  feeling  that  we  must  act  in  a  certain  way 
in  order  to  bring  about  or  prevent,  as  the  case  may 
be,  the  most  desired,  or  the  most  feared,  conse- 
quences. And  there  is  no  other  actual  rule  in  this 
field  of  personal  and  private  conduct.  If  the  viola- 
tions of  it  were  more  numerous  than  the  compliances, 
and  were  all,  or  the  bulk  of  them,  prompted  by  the 
same  cause,  and  that  cause  were  one  that  restrained 
conduct,  they  would  themselves  constitute  the  rule. 
But  no  one  will  contend  that  this  is  the  case.  That 


Growth  and  Function  151 

man  should  habitually  act  so  as  to  gain  misery  for 
himself  is  not  easily  thinkable.  All  the  violations  of 
this  rule  consist,  not  in  restraint,  but  in  licence. 
The  only  consideration  which  restrains  conduct  is 
the  dictate  of  reason  advising  the  sacrifice  of 
immediate  pleasure  for  a  more  distant  and  wider 
happiness.  The  violations  of  the  rule  are  really 
but  exceptions,  however  numerous. 

The  rule  therefore  which  in  fact  governs  in  this 
sphere  of  personal  and  private  conduct  is  that  which 
impels  us  to  obey  the  dictates  of  reason  founded 
upon  a  scrutiny  of  the  consequences  of  conduct. 
Ought  it  to  be  the  rule  ?  This  is  an  audacious  ques- 
tion which  we  are  not  permitted  to  ask  unless  we 
are  vain  enough  to  presume  to  sit  in  judgment 
upon  the  work  of  the  great  Author  of  all,  and 
imagine  that  we  can  discover  a  better  one. 

What  is  the  name  given  to  this  rule?  Common 
speech  frequently  affords  the  most  precise  defi- 
nitions of  things  which  it  is  difficult  to  well  describe, 
and  it  does  so  here.  It  is  conscience,  the  inward 
monitor — con  and  scire,  to  know  or  to  feel — a  con- 
viction within  one's  self  as  the  product  of  one's  own 
thought.  And  thus  the  universal  feeling  that  man 
ought  to  follow  the  dictates  of  his  conscience  has  a 
scientific  basis. 

While  conscience  informs  us  that  we  should,  in 
general  obey  the  law  and  custom,  for  the  reason 
that  they  embody  the  results  of  the  common  thought 
of  all  and  of  the  operation  throughout  the  unlimited 
past  of  that  same  reason  which  gives  our  own  con- 
sciences the  light  by  which  they  are  guided,  and  are 


i52  Law,  Its  Origin 

thus  the  fruit  of  the  experience  of  the  race,  which  is 
wiser  than  any  man's  wisdom,  still  its  own  final 
command  is  supreme  over  both  custom  and  the  law. 
There  may  be  cases  in  which  a  man  maybe  justified 
in  defying  custom,  and  even  the  law — 

"  What  conscience  dictates  to  be  done, 

Or  warns  me  not  to  do, 
This  teach  me  more  than  hell  to  shun, 
That  more  than  heaven  pursue. " 

But  we  should  be  certain  that  the  whisperings  of 
vanity  or  the  promptings  of  obstinacy  are  not  mis- 
taken for  the  true  utterance  of  the  inward  monitor. 
The  former  are  likely  to  be  regarded  by  others 
with  contempt,  the  latter  points  out  the  pathway 
which  heroism  treads,  and  may  win  the  crown  of 
martyrdom. 

There  is  a  certain  feeling  common  to  all  which 
tends  to  make  us  think  that  conscience  is  a  separate 
faculty  bestowed  upon  man,  a  moral  sense  which 
instinctively  and  immediately  informs  him  what  is 
is  right  and  what  is  wrong.  We  speak  of  the' 'voice 
within"  and  use  other  phrases  importing  the  exist- 
ence of  such  a  moral  faculty.  For  this  view  there 
is  really  no  foundation.  It  can  hardly  be  that  there 
are  two  independent  rules  for  conduct.  If  we  have 
a  moral  sense  which  by  its  inherent  power  discerns 
and  declares  what  is  right  it  must  be  unerring.  We 
should  follow  its  dictates  implicitly.  We  should 
never  indulge  a  second  thought.  If  what  we  call 
reason,  or  a  regard  for  consequences,  should  be 
allowed  to  control  our  conduct,  in  opposition  to  this 


Growth  and  Function  153 

interior  sense,  we  should  be  following  a  false  light. 
But  we  have  no  moral  sense  other  than  conscience, 
and  this  is,  in  fact,  only  another  name  for  the  dictates 
of  reason  founded  on  a  view  of  the  consequences  of 
conduct.  Whenever  a  question  concerning  conduct 
arises,  we  instantly  proceed  to  ponder  upon  the  con- 
sequences. We  may  be  sure  that  those  causes  con- 
trolling conduct,  which  are  the  only  ones  we  are  ever 
conscious  of  obeying,  are  the  only  ones  we,  in  fact, 
ever  obey  or  ought  to  obey. 

The  illusion,  so  to  speak,  by  which  we  are  led  to 
imagine  that  conscience  is  a  special  faculty  bestowed 
upon  us  arises,  I  apprehend,  from  the  instantaneous 
action  of  reason  in  many  cases.  When  we  reflect 
that  during  the  years  of  childhood  we  were  daily 
taught  that  we  must  do  certain  things,  and  must  not 
do  certain  other  things,  and  that  ever  since  we  have 
been  habitually  practising  upon  precepts  thus  ac- 
quired and  upon  others  formed  by  ourselves,  we  need 
not  marvel  at  the  rapidity  with  which  we  go  through 
the  mental  acts  necessary  to  direct  our  ordinary 
conduct.  It  is  analogous  to  the  like  rapidity  with 
which  we  exercise  our  bodily  muscles.  The  action 
seems  spontaneous  and  instinctive. 

What  I  have  been  saying  tends  to  explain  the 
peculiar  significance  of  the  word  ought  which  has 
been  the  subject  of  much  discussion.  That  we  have 
a  feeling  well  enough  described  as  the  "sense  of 
ought"  I  readily  agree.  It  suggests  to  us  an  immedi- 
ate pointing  of  our  conduct  in  a  certain  direction. 
It  gives  no  reason,  but  assumes  to  speak,  as  it  were, 
from  its  own  authority.  This  arises,  I  imagine, 


154  Law,  Its  Origin 

from  the  immediate  recognition  of  the  moral  quality 
of  actions  which  have  been  many  times  in  our 
thoughts.  As  just  mentioned,  in  childhood  we  were 
taught  innumerable  things,  which  we  must,  or  must 
not,  do,  and  since  the  period  of  childhood  we  have 
been  teaching  ourselves,  with  the  aid  of  experience 
and  reason,  similar  lessons,  and  thus  we  have  been 
forming  vast  classifications  of  such  things,  and  when 
in  the  course  of  our  daily  lives  the  temptation,  the 
impulse,  the  occasion  for  doing  any  one  of  them  arises, 
we  do  not  go  through  any  consideration  of  the  con- 
sequences which  may  flow  from  the  contemplated 
conduct ;  all  questions  concerning  its  propriety  have 
already  been  met  and  answered  by  early  instruction 
or  self -discipline ;  the  act  contemplated  is  at  once 
perceived  as  falling  within  a  class,  the  distinguishing 
characteristic  of  which  is  that  it  ought,  or  ought  not, 
to  be  done;  oughtness  or  ought-notness  is  the  quality 
of  the  class,  and  affects  the  mind  immediately,  in 
like  manner  as  the  qualities  of  physical  objects,  such 
as  whiteness,  or  smoothness,  or  hardness.  This 
instantaneous  recognition  of  the  quality  of  actions 
founded  on  early  teaching  or  self-discipline  is,  I 
apprehend,  the  feeling  akin  to  the  voice  of  conscience, 
which  is  often  called  our  moral  sense,  or  the  sense 
of  ought,  or  ought  not.  The  utility  of  such  a  guide  we 
readily  understand.  Were  it  necessary  for  us  in  our 
ordinary  conduct  to  be  pondering  upon  possible 
consequences  at  every  point,  life  would  be  the  scene 
of  constant  perplexity.  The  conclusions  of  reason 
tested  by  countless  experiences,  arranged  and  classi- 
fied, are  like  the  digested  wisdom  of  a  body  of  ad- 


Growth  and  Function  155 

judications  in  the  law.  The  habits  of  our  personal 
lives,  like  the  customs  of  social  life,  become  the 
repositories  of  the  numberless  conclusions  of  experi- 
ence. They  are  really  the  conclusions  of  reason 
founded  upon  the  consideration  of  conduct,  but  they 
so  instantaneously  inform  us  as  to  what  is  to  be  done 
that  we  are  not  conscious  of  any  deliberation  and 
seem  to  be  commanded  by  some  mysterious  inward 
monitor. 

The  word  ought  has  its  correlative  in  right.  I  ought 
to  do  whatever  it  is  right  for  me  to  do ;  but  right  is 
more  properly  descriptive  of  the  intellectual  con- 
clusion of  reason,  while  ought  imports  the  sense  of 
obligation  to  govern  conduct  in  accordance  with 
that  conclusion. 

The  reality  and  significance  of  the  divisions  I 
have  made  of  the  field  of  conduct  are  well  illustrated 
by  a  comparison  of  the  meaning  of  the  words  just 
and  ought.  Ought,  as  we  have  seen,  is  the  voice  in 
which  conscience  speaks;  but  what  is  the  precise 
significance  of  just  ?  What  is  justice  ?  There  has 
been  much  uncertainty  upon  this  point.  To  some  it 
has  seemed  to  import  a  sublime  attribute,  almost 
an  emanation,  as  it  were,  of  the  Deity,  recognisable 
by  an  innate  moral  sense.  Some  regard  it  scarcely 
more  than  a  synonymous  expression  of  what  is 
right  or  ought  to  be  done,  But  the  attempt  to 
form  a  conception  of  some  absolute  attribute  which 
would  properly  be  named  justice  is  an  abortive 
one.  All  we  know  is  that  certain  acts  are  called 
just,  and  we  feel  them  to  be  just.  The  difficulty 
is  in  saying  what  things,  and  what  only,  belong 


Law,  Its  Origin 

to  that  class.  Certainly  all  right  things  are  not 
properly  called  just.  It  is  right  to  aid  the  dis- 
tressed, to  go  to  church,  to  cherish  one's  friends, 
but  such  acts  do  not  possess  the  quality  which 
justice  denotes.  If  a  man  indulges  to  excess  in 
intoxicating  drinks,  or  engages  in  any  other  vice 
involving  himself  alone,  we  should  say  that  his 
action  was  very  wrong,  but  we  would  not  call  it 
unjust.  Do  unto  others  as  you  would  that  others  should 
do  unto  you,  would  satisfy  the  sentiments  of  love  and 
charity,  but  not  that  of  justice.  Justice,  in  its 
primary  signification,  comes  into  play  only  in 
respect  to  that  part  of  the  conduct  of  an  individual 
in  which  others  are  concerned,  but  yet  not  all  of 
that  falls  within  its  sphere.  There  are  a  multitude 
of  minor  customs  and  observances  of  life  in  which 
the  word  is  not  well  employed.  The  disregard  of 
common  social  obligations  would  not  excite  the  sense 
of  injustice.  It  is  the  matters  of  graver  importance 
of  which  the  law  takes  cognisance  that  fall  within 
the  field  where  justice  has  sway.  It  has  relation  to 
that  body  of  rights  which  the  law  actually  enforces, 
and  which  is  called  in  the  Roman  Law  by  the  word 
from  which  it  is  derived,  jus.  Hence  the  term 
jurisprudence,  which  is  the  science  of  legal  justice — 
that  is,  of  justice  so  far  as  it  is  enforced.  And  yet 
justice  and  law  are  equivalent  words.  We  say 
sometimes,  very  properly,  that  a  law  is  unjust, 
meaning  that  it  is  not  what  it  ought  to  be,  but 
there  is  no  point  of  view  from  which  we  can  criticise 
justice. 

Justice  considered  as  a  sentiment  is  the  sense  of 


Growth  and  Function  157 

what  ought  to  be  done  by  one  to  another,  and  this 
is,  necessarily,  what  one  might  fairly  expect  from, 
another — that  is,  what  is  customarily  done,  for  no 
one  would  think  it  justice  to  require  from  one  any- 
thing not  in  accordance  with  custom.  The  occasions 
which  call  justice  into  activity  are  those  in  which 
there  are  differences  between  men,  assertions  of 
rival  claims,  irritations,  and  premonitions  of  strife, 
or  actual  strife.  It  is  then  that  the  need  is  felt  of 
something  which  will  allay  hostility  and  bring  about 
peace.  This  can  not  be  done  by  mere  force.  You 
may  let  contestants  fight  it  out  until  one  has  con- 
quered the  other,  but  this  will  not  allay  the  irri- 
tation; it  may  serve  only  to  fan  the  flame  and 
induce  preparation  for  another  struggle.  Nor  will 
it  be  of  any  avail  to  imprison  the  contestants.  The 
quarrel  will  be  taken  up  by  families  and  friends; 
but  if  that  one  thing  were  done  which  all — excepting 
perhaps  the  contestants — will  regard  as  the  thing 
fit  to  be  done  under  the  circumstances,  the  strife 
would  be  ended.  The  contestants  could  not  con- 
tinue it,  for  they  could  retain  no  sympathy  or  aid, 
and  would  be  denounced  on  all  hands  as  disturbers 
of  the  peace.  Now  there  is  one  thing  in  such  cases 
which  all  would  think  fit  to  be  done,  and  that  is 
what  all,  in  general,  would  expect  to  be  done,  and 
this,  as  I  have  reasoned  out  at  length,  is  a  compli- 
ance with  custom.  But  if  the  custom  be  doubtful, 
what  then?  This  is  the  case  in  very  many  disputes; 
it  is  what  the  contestants  are  quarrelling  about. 
The  thing  to  be  done  is  to  ascertain  the  custom  and 
conform  to  it.  This  is  precisely  the  thing  for  which 


158  Law,  Its  Origin 

courts  were  established,  and  hence  they  are  called 
courts  of  justice.  This  strict  limitation  of  the  word 
justice  to  such  matters  as  the  law  takes  cognisance 
of  must  be  enlarged  to  take  in  other  cases  in  which 
the  word  justice  is  used  in  an  analogous  sense. 
There  may  be  disputes  of  which  the  law  takes  no 
notice.  One  man  may  have  impugned  the  character 
of  another  and  a  challenge  has  passed;  the  seconds 
attempt  to  bring  about  a  reconciliation  without 
success.  Each  is  prejudiced  in  favour  of  his  princi- 
pal; the  intervention  of  third  parties  is  accepted, 
and  they  ascertain  as  nearly  as  possible  which  of  the 
combatants  has  made  the  first  departure  from  cus- 
tom, and  dictate  the  mutual  withdrawals  and  repara- 
tions which,  in  their  opinion,  should  compose  the 
difference,  and  all  say  justice  has  been  done. 

The  absolute  supremacy  of  the  rule  of  custom  in 
determining  the  character  of  conduct  is  well  shown 
by  one  of  the  common  employments  of  the  word 
justice.  Suppose  a  law  be  enacted  making  it  a 
misdemeanour  for  a  man  to  enter  upon  the  land  of 
another  after  the  other  has,  by  notice  in  writing,  for- 
bidden him  to  enter,  and  the  person  forbidden  goes 
upon  the  land  to  recover  some  cattle  belonging  to 
him  who  have  strayed  upon  it  and  are  doing  mischief. 
He  is  prosecuted  and  fined.  The  law  has  been  exe- 
cuted, but  all  would  say  that  injustice  has  been 
done.  Justice,  therefore,  is  something  which  sits 
in  judgment  even  on  the  law.  But  what  kind  of  law 
is  it  which  thus  sometimes  operates  to  inflict  injus- 
tice instead  of  doing  justice?  Not  that  unwritten 
law  which  springs  from  custom,  but  that  written 


Growth  and  Function  159 

enactment  which  a  few  men  called  legislators  frame. 
How  seldom  do  we  find  anything  but  satisfaction 
with  the  judgments  of  our  courts  enforcing  the 
unwritten  law  of  custom?  Suppose  the  trespass 
upon  land  just  mentioned  had  been  left  to  be  re- 
dressed by  an  ordinary  suit  to  recover  the  damages 
occasioned  by  it.  The  judge  would  have  instructed 
the  jury  that  the  plaintiff  was  entitled  to  a  verdict 
for  whatever  actual  damages  he  had  suffered,  and 
the  jury  would  have  accorded  him  six  cents,  and 
all  would  feel  that  justice  has  been  done. 

What  is  it  that  gives  to  the  word  justice  its  deep 
and  august  significance — its  supremacy  among  the 
moral  sentiments?  I  think  a  sufficient  answer  to 
this  question  is  found  in  what  I  have  said  of  the  true 
nature  of  custom.  When  we  reflect  that  the  lives, 
peace,  and  comfort  of  men  from  the  infancy  of  the 
race  have  been  threatened  and  disturbed  by  the 
conduct  of  one  individual  exciting  the  resentment 
and  passion  of  another  and  prompting  retaliation 
and  revenge,  and  that  the  only  escape  from  the 
terrors  and  fears  thus  arising  has  come  from  the 
doing  of  that  thing  which  all  agree  is  fit  to  be  done, 
and  that  to  this  thing  the  word  justice  is  given,  we 
can  understand  the  power  and  solemnity  with  which 
the  word  is  invested.  It  imports  the  end  of  strife 
and  violence  and  the  incoming  of  satisfaction  and 
peace,  and  as  it  is  the  only  thing  which  will  bring 
this  satisfaction  and  peace,  its  dictates  are  supreme 
and  final,  admitting  of  no  appeal.  Why  does  not 
the  written  law  in  all  cases  affect  us  with  the  same 
reverent  regard?  Why  do  we  feel  at  liberty  some- 


160  Law,  Its  Origin 

times  to  denounce  a  regularly  enacted  statute  as 
wrong,  tyrannical,  and  unjust?  It  is  because  it  is 
but  the  product  of  the  will  of  one  or  a  few  men, 
and  is  liable  to  be  affected  by  the  ignorance,  passion, 
and  error  to  which  their  judgments  are  subject;  but 
there  is  no  ignorance,  passion,  or  error  in  those 
conclusions  of  wisdom,  tested  by  the  experience  of 
ages,  which  lie  imbedded  in  the  customs  of  life. 

We  here  again  encounter  a  certain  feeling  of  dis- 
appointment in  finding  Justice,  which  we  have  been 
wont  to  regard  as  an  attribute  almost  of  Divinity, 
so  closely  identified  with  the  mere  following  of 
custom.  We  would  have  it  something  lofty,  eternal, 
and  unchangeable,  but  we  find  it,  or  rather  its  stand- 
ards, shifting  as  custom  shifts.  This  phenomenon, 
in  the  view  of  some  great  minds,  has  tended  to  de- 
throne Justice  from  its  lofty  seat.  It  provoked  the 
misanthropy  of  Pascal  into  some  striking  exaggera- 
tions. He  says : 

"In  the  just  and  the  unjust  we  find  hardly  anything  which 
does  not  change  its  character  in  changing  its  climate. 
Three  degrees  of  elevation  of  the  pole  reverse  the  whole  of 
jurisprudence!  A  meridian  is  decisive  of  truth,  or  a  few 
years  of  possession!  Fundamental  laws  change!  Right  has 
its  epochs !  A  pleasant  justice  that,  which  a  river  or  a  mountain 
limits!  Truth  on  this  side  the  Pyrenees,  error  on  the  other!" 

But  he  hinted  at  a  profound  truth  when  he  said : 

"  Custom  is  a  second  nature  which  destroys  the  first.  Why 
is  not  custom  natural?  I  am  greatly  afraid  that  nature 
itself  may  be  only  a  first  custom,  as  custom  is  a  second 
nature.1 " 

1  Pascal,  Pensees,  partie  i.,  art.  vi. 


Growth  and  Function  161 

•i 

But  the  change  is  not  in  justice  itself,  but  in  the 
things  to  which  it  relates.  If  we  remember  that 
thought  is  the  product  of  the  action  of  the  environ- 
ment on  our  organs  of  sense,  and  that  the  environ- 
ments and  the  constitutions  of  men  are  everywhere 
different,  thoughts  must  be  different  and  customs 
different.  This  is  what  separates  man  into  different 
national  groupings,  and  unites  man  with  man  in  the 
separate  groupings.  The  genial  philosophy  of  Herod- 
otus, springing  from  his  communion  with  men  rather 
than  from  solitary  contemplation,  took  a  different 
view  of  custom.  He  is  thus  quoted  by  Sir  William 
Hamilton : 

"  The  whole  conduct  of  Cambyses  toward  the  Egyptian  gods, 
sanctuaries,  and  priests,  convinces  me  that  this  king  was  in 
the  highest  degree  insane,  for  otherwise  he  would  not  have 
insulted  the  worship  and  holy  things  of  the  Egyptians.  If 
any  one  should  accord  to  all  men  the  permission  to  make  free 
choice  of  the  best  among  all  customs,  undoubtedly  each 
would  choose  his  own.  That  this  would  certainly  happen 
can  be  shown  by  many  examples,  and,  among  others,  by  the 
following:  The  King,  Darius,  once  asked  the  Greeks  who  were 
resident  in  his  court,  at  what  price  they  could  be  induced 
to  devour  their  dead  parents.  The  Greeks  answered,  that  to 
this  no  price  could  bribe  them.  Thereupon  the  king  asked 
some  Indians  who  were  in  the  habit  of  eating  their  dead 
parents,  what  they  would  take  not  to  eat  but  to  burn  them ; 
and  the  Indians  answered  even  as  the  Greeks  had  done."  1 

And  Herodotus  added  that  Pindar  had  justly  en- 
titled Custom  as  the  Queen  of  the  World. 

In  associating  Custom  with  Justice,  therefore,  we 
do  not  dethrone  the  latter,  but  seat  Custom  beside 

1  Hamilton's  Lectures  on  Metaphysics,  lecture  v.,  p.  60. 


1 62  Law,  Its  Origin 

her.  Justice  is  the  felt  necessity  of  doing  that  which 
secures  order  and  peace.  Custom  furnishes  the  rule 
which  answers  to  that  necessity.  The  imperious 
necessity  of  justice  is  acknowledged  even  by  those 
who  hate  it.  The  bad  must  fly  to  it  as  well  as  the 
good.  The  footpad  plying  his  avocation  on  Hounslow 
Heath,  who  filed  a  bill  in  equity  to  compel  his  pal 
to  give  an  account  of  the  purses  he  had  taken,  had 
an  impregnable  case  on  grounds  of  justice  as  between 
himself  and  his  confederate,  though  he  had  mis- 
taken his  forum.  Fisher  Ames,  in  a  celebrated  de- 
bate upon  the  treaty  with  Great  Britain,  arguing 
that  the  carrying  out  of  that  treaty  was  required  by 
a  regard  for  justice,  well  described  the  force  of  that 
obligation : 

"  If  there  could  be  a  resurrection  from  the  foot  of  the  gallows, 
if  the  victims  of  justice  could  live  again,  collect  together,  and 
form  a  society,  they  would,  however  loath,  soon  find  them- 
selves obliged  to  make  justice,  that  justice  under  which 
they  fell,  the  fundamental  law  of  their  State."  * 

Justice  is,  therefore,  not  an  absolute,  but  a  relative 
virtue,  finding  its  play  in  that  field  of  our  conduct 
which,  according  to  the  division  I  have  employed, 
relates  to  our  dealings  and  intercourse  with  each 
other  in  society,  and  enforcing  in  that  field  the  things 
necessary  to  the  existence  of  society.  This  existence 
is  assured  when,  and  only  when,  each  receives  from 
all  the  treatment  he  may  fairly  expect.  Then  men 
love  to  live  together;  otherwise  they  fly  apart  as 
if  charged  with  resinous  electricity.  Justice  may 
therefore  be  defined  to  be  the  principle  which  dic- 

1  Fisher  Ames,  vol.  ii.,  p.  61. 


Growth  and  Function  163 

tates  that  conduct  between  man  and  man  which 
may  fairly  be  expected  by  both,  and  as  none  may 
fairly  expect  from  another  what  is  not  in  accordance 
with  custom,  justice  consists  in  the  compliance  with 
custom  in  all  matters  of  difference  between  men. 
It  is  the  right  arm  of  Peace  and  the  antithesis  of 
Force.  This  accords  with  the  definition  of  the 
Roman  Law — constans  et  perpetua  voluntas  suum 
cuique  tribuendi.  To  each  his  due;  but  as  we  can 
know  the  due  of  each  only  from  the  common  feeling 
of  what  is  due,  and  this  is  dependent  upon  custom, 
the  identity  of  justice  with  conformity  with  custom 
is  implied. 

The  comparative  significations  of  justice  and  right 
here  become  apparent.  I  have  heretofore  said  that 
conscience  is  the  supreme  and  final  arbiter  over  the 
whole  field  of  conduct,  while  justice  is  concerned 
with  that  part  of  it  only,  which  relates  to  our  deal- 
ings with  each  other.  The  dictate  of  conscience 
is  properly  expressed  by  right,  and  this,  therefore, 
is  a  larger  term  than  justice.  Right  includes  the 
just.  Whatever  custom  pronounces  to  be  just, 
conscience  in  general  accepts  and  declares  to  be 
right;  but  in  the  field  of  purely  private  conduct 
justice  has  no  concern,  and  what  is  here  right,  is 
not  properly  described  as  just,  and  although  in  all 
ordinary  cases  conscience  declares  the  just  to  be 
right,  there  may  be  an  exception.  It  is  this  possi- 
bility which  gives  rise  to  one  of  the  difficult  questions 
in  casuistry,  namely,  whether  it  can  be  right  under 
any  circumstances  to  violate  a  promise  upon  which 
the  promisee  has  acted. 


1 64  Law,  Its  Origin 

What  is  the  difference  between  the  words  must 
and  ought  ?  They  are  sometimes  used  in  senses  which 
have  no  ethical  significance.  Either  word  may  be 
employed  in  common  speech  to  indicate  the  necessity 
of  some  particular  instrumentality  to  some  particular 
object.  Thus  I  may  say  I  ought  to  have,  or  I  must 
have,  a  sharper  knife  to  cut  this  meat,  and  there 
is  no  important  distinction  between  the  meanings 
of  the  words  when  thus  used.  But  there  is  a  differ- 
ence when  they  are  used  in  their  ethical  senses; 
there  is  a  difference  which  the  dictionaries  do  not 
explain,  and  which  seems  subtle  and  obscure.  I 
think  that  the  obscurity  will  be  cleared  up  by  stating 
that  these  words  relate  respectively  to  the  two 
principal  divisions  of  the  field  of  conduct.  Where 
the  conduct  in  question  consists  of  transactions  in 
which  the  interests  of  more  than  one  are  concerned, 
must  is  more  properly  employed.  Such  conduct  is 
governed  in  part  by  the  law  and  in  part  by  the  other 
rules  of  custom,  and  the  sanction  or  obligation 
attached  to  them  is  external  to  the  individual.  It 
is  an  external  force  over  which  he  has  no  control, 
which  he  feels  bound  to  obey  without  stopping  to 
consider  what  the  consequences  may  be.  The  law 
tells  me  I  must,  not  that  I  ought,  and  I  say  to  myself 
— I  must  do  this,  or  I  must  not  do  that,  because  the 
law  in  the  one  case  commands,  and  in  the  other 
case  forbids.  And  it  is  the  same  with  those  obliga- 
tions of  custom  which  are  not  enforced  by  law.  If 
I  have  accepted  an  invitation  to  dinner,  but  do  not 
wish  to  go,  I  feel  an  external  force  pressing  me  to 
go,  and  I  feel  that  I  must  go.  The  question  of  con- 


Growth  and  Function  165 

sequences  is  not  ordinarily  in  these  cases  to  be 
considered.  I  must  obey  the  law  without  regard  to 
consequences,  and  social  custom  as  well,  although 
the  obligation  is  not  in  the  latter  case  usually  so 
rigid. 

But  when  we  come  to  the  field  of  private  personal 
conduct  the  case  is  different.  Here  we  feel  no 
external  authority  speaking  in  the  language  of  com- 
mand. Here  conscience  has  an  exclusive  juris- 
diction, and  its  language  is  not  "you  must"  or  "you 
must  not,"  but  "you  ought"  or  "you  ought  not." 
Nor  are  consequences  felt  to  be  immaterial  here; 
on  the  contrary,  the  decision  is  arrived  at  as  the 
result  of  a  survey  of  all  the  consequences.  The 
difference  between  the  words  comes  into  strong 
relief  when  they  stand,  as  they  sometimes  do,  in 
opposition  to  each  other.  Although  private  and 
personal  life  is  the  immediate  and  principal  sphere 
of  the  activity  of  conscience,  yet  conscience  as  the 
ultimate  governor  of  our  entire  conduct  has  a 
supervisory  jurisdiction  over  the  commands  of 
custom  and  even  of  law.  In  ordinary  cases  conscience 
tells  me  to  obey  both,  for  both  are  in  general  neces- 
sary, or  contributory,  to  the  highest  good;  but 
sometimes  it  calls  a  halt,  and  advises  a  wider 
survey  of  consequences,  and  possibly  disobedience. 
We  can,  indeed,  hardly  imagine  conscience  as  ad- 
vising disobedience  to  the  whole  body  of  the  un- 
written law,  but  particular  enactments  may  easily 
be  imagined,  and  perhaps  found,  which  conscience 
would  say  might  well  be  disregarded,  and  to  over- 
throw the  existing  rulers  and  substitute  new  ones  is 


166      Law:  Origin,  Growth,  and  Function 

a  right  which  in  certain  cases  Americans  cannot 
deny.  In  such  cases,  "I  must"  yields  to  "I  ought." 
I  am  a  military  officer  and  am  challenged  to  fight 
a  duel.  I  feel  that  I  must  accept  it,  but  conscience 
may  interpose  and  change  the  feeling  to  "I  ought 
not."  The  external  authority  of  custom,  even  when 
not  enforced  by  law,  carries  with  it  in  most  cases 
the  superior  power;  "I  must"  is  more  likely  to  be 
obeyed  than  "I  ought,"  but  with  the  men  of  the 
highest  mould  the  obligatory  force  of  ought  is  equiva- 
lent to  that  of  must,  and  the  words  are  interchange- 
able. Alexander  Hamilton  gave  a  pathetic  picture 
of  the  struggle  between  these  rival  sentiments  when, 
having  on  many  previous  occasions  borne  his  testi- 
mony against  the  practice  of  duelling,  he  said  on 
the  eve  of  his  fatal  meeting  with  Burr,  and  in  the 
last  words  he  ever  wrote:  "The  ability  to  be  in 
future  useful,  whether  in  resisting  mischief  or  in 
effecting  good,  in  those  crises  of  our  public  affairs 
which  seem  likely  to  happen,  would  probably  be 
inseparable  from  a  conformity  with  public  prejudice 
in  this  particular."  * 

1  Hamilton's  Works,  vol.  viii.,  p.  628. 


LECTURE  VII 

HAVING  completed  the  survey  I  designed  of  the 
whole  field  of  human  conduct  with  the  view  of 
ascertaining  the  causes  which  in  point  of  fact  con- 
trol and  regulate  it,  it  may  be  well  to  set  forth  in 
the  form  of  a  summary  the  general  conclusions 
which  that  survey  seems  to  justify  and  the  steps  by 
which  it  is  reached. 

Conduct  consists  in  some  physical  movement  of 
the  body,  and  it  is  of  such  movements  only  that  the 
law  takes  direct  notice,  although  in  some  exceptional 
cases  where  the  nature  of  an  act  is  qualified  by  the 
intention  which  prompts  it,  it  may  inquire  as  to 
that  intention.  Man  has  thoughts  or  feelings  moved 
by  the  action  of  the  external  world  upon  his  physical 
constitution  which  necessarily  impel  him  to  action, 
and  inasmuch  as  the  constitutions  of  men  are  similar, 
and  the  environments,  in  the  same  society,  similar,  the 
actions  of  men  in  the  same  society  are  similar,  and 
conduct  is  consequently  necessarily  exhibited  in  the 
form  of  habits  and  customs. 

Man  learns  by  experience  that  all  action  is  product- 
ive, in  its  consequences,  of  either  pleasure  or  pain, 
and,  by  a  natural  law,  he  expects  that  the  same 
conduct,  when  repeated,  will  produce  the  like  con- 
sequences. The  motive  to  all  action  is  to  enjoy 

167 


1 68  Law,  Its  Origin 

pleasure  or  to  avoid  pain,  and  he  can  know  what 
will  afford  f him  pleasure  or  relieve  him  from  pain 
only  by  attention  to  the  consequences  of  his  conduct. 
The  study  of  the  consequences  of  conduct  is  there- 
fore the  first,  as  it  is  the  last,  in  which  man  is  forever 
in  every  waking  moment  engaged.  From  this  study 
he  learns  that  certain  kinds  of  conduct — that  is, 
certain  actions, — produce  pleasure,  and  that  others 
produce  pain.  These  he  classifies  and  is  moved  in 
his  conduct  to  repeat  the  former  and  avoid  the  latter. 
He  learns,  however,  that  while  the  immediate  con- 
sequences of  some  acts  are  pleasurable,  they  yet  re- 
sult eventually  in  a  greater  aggregate  of  pain,  while 
others  which  have  consequences  immediately  painful 
produce  eventually  a  larger  sum  of  pleasure,  and  he 
learns  to  forego  the  immediate  gratification  of  his 
natural  desires  and  tendencies  in  the  hope  of  securing 
a  more  distant  but  larger  good,  or  of  escaping  a 
more  distant  but  greater  pain;  that  is,  he  restrains 
and  governs  his  conduct  according  to  his  knowledge 
or  judgment  of  its  consequences.  Here  we  have  a 
rule  of  conduct.  When  man  acts  in  pursuance  of 
immediate  natural  impulse,  he  acts  without  rule; 
but  when  he  follows  a  teaching  or  principle  formed 
by  a  generalisation  of  the  consequences  of  all  con- 
duct open  to  his  observation,  and  restrains  his 
impulses  in  accordance  therewith,  he  obeys  a  rule. 

The  phenomena  of  the  development  of  this  funda- 
mental law  require  us  to  divide  the  field  of  conduct 
into  two  parts  by  separating  that  which  affects 
only  the  individual  acting  from  that  in  which  his 
action  affects  others.  In  the  first,  man  has  ever 


Growth  and  Function  169 

been  and  still  is  free  from  external  restraint.  He  still 
acts  according  to  rule,  but  that  rule  is  furnished  by 
his  judgment  of  the  consequences  of  conduct  in  their 
operation  upon  himself  alone — that  is,  according  to 
his  reason,  or  what  we  call  conscience, — and  a  survey 
of  this  field  with  an  arrangement  of  the  different 
varieties  of  conduct  according  to  their  consequences 
constitutes  one  branch  of  the  science  of  ethics.  The 
other  field,  the  social  one,  differs  only  in  this,  that 
the  individual  finds  that  unless  he  regulates  this  part 
of  his  conduct  in  accordance  with  the  fair  expecta- 
tions of  others,  he  will  suffer  punishment  of  some 
sort  from  them,  and  this  supplies  an  external  re- 
straint as  a  motive  to  induce  him  to  shape  his  conduct 
in  accordance  with  such  expectation.  The  reason 
why  he  thus  governs  his  conduct  is  that  if  he  fails 
to  do  so  he  is  likely  to  suffer  punishment  or  disap- 
pointment from  those  whose  expectation  he  dis- 
appoints, and  this  compels  him  to  take  notice  of 
what  that  expectation  is ;  he  finds  that  others  expect 
him  to  act  as  he  expects  others  to  act  in  accordance 
with  custom,  and  custom  thus  becomes  the  law  in 
this  field  of  conduct.  The  only  means  of  enforcing 
this  law  of  custom  in  those  states  of  society  which 
precede  that  in  which  it  takes  on  an  organised  form 
is  what  is  called  self-help  aided  by  social  sympathy 
and  other  social  influences.  The  individual  takes 
the  law,  so  to  speak,  in  his  own  hands,  and  by  in- 
flicting punishment  on  those  who  violate  custom 
creates  the  motive  for  yielding  obedience  to  it. 
This  punishment  may  not  be  physical  or  violent. 
It  is  apt  to  be  so  where  the  offence  is  flagrant,  but 


1 70  Law,  Its  Origin 

minor  offences  are  punished  by  social  disapproval 
manifested  in  various  ways. 

A  marked  change  follows  the  adoption  of  organised 
government.  This  organisation  exists  from  an  early 
stage  in  a  simple  form  for  various  social  purposes, 
but  its  improvement  is  very  largely  superinduced 
by  the  felt  necessity  of  doing  away  with  the  violence 
and  mischief  of  self-help.  The  men  of  approved 
wisdom  or  other  experts  in  the  knowledge  of  customs 
are  employed  who  declare  what  custom  requires 
in  cases  of  dispute,  and  by  degrees  society  comes 
to  use  means  for  enforcing  their  decisions,  and 
regular  law  comes  into  operation.  But  as  this  organ- 
ised control  was  reached  in  order  to  supplant  the 
violence  of  self-help,  its  action  is  correspondingly 
limited,  and  is  exercised  only  in  the  case  of  those 
breaches  or  alleged  breaches  of  custom  which  en- 
danger the  peace  of  society.  The  less  important 
conduct  is  left  to  the  regulation  of  custom  by  the 
methods  before  employed,  the  expression  of  social 
disapproval  and  social  ostracism. 

As  civilisation  advances,  and  population,  industry, 
and  wealth  increase,  the  social  organisation  expands 
and  advances,  and  the  means  for  ascertaining  and 
enforcing  custom  become  more  perfect  until  regular 
judicial  tribunals  are  established,  armed  with  the 
whole  power  of  the  State  to  directly  enforce  their 
decisions.  The  proceedings  of  these  tribunals  are 
embodied  in  permanent  records,  and  their  decisions 
act  as  authoritative  declarations  of  binding  custom — 
that  is,  they  become  precedents,  and  thereafter  in 
cases  of  litigation  where  an  apt  precedent  is  found  it 


Growth  and  Function  17* 

is  followed  without  further  inquiry,  and  the  pre- 
cedents themselves  are  by  the  private  work  of 
jurists  arranged  in  scientific  form  and  go  to  make 
up  the  fabric  of  substantive  law. 

In  the  course  of  this  social  progress  the  more  com- 
pletely organised  State  becomes  capable  of  surveying 
its  own  condition  and  wants,  and  of  perceiving  that 
justice  would  be  better  administered  if  better  pro- 
vision in  the  way  of  courts  and  judicial  precedure 
were  made,  and  if  mischievous  acts  which  have  not 
as  yet  been  publicly  punished  were  declared  and 
treated  as  crimes,  and  that  the  mechanism  of  gov- 
ernment in  all  its  parts  might  be  improved  by  new 
devices.  It  forms  its  will  in  respect  to  such  concerns, 
expresses  it  in  writing,  and  solemnly  declares  it  by 
means  of  enacted  laws.  This  is  the  making  of  Public 
Law  in  which  legislation  found  its  first  employment, 
and  which  is  still  its  chief,  if  not  its  only  function. 

If  we  scrutinise  the  actual  process  which  we 
employ  to-day  in  ascertaining  the  law  in  any  par- 
ticular case,  we  find  that  if  the  point  in  question 
be  public  law,  we  turn  to  the  statute-book ;  if  it  be 
private  law,  we  turn  to  the  body  of  precedents. 
The  information  we  thus  derive  suffices  for  all  cases 
of  ordinary  doubt,  and  the  great  body  of  human 
conduct  appears  as  a  spectacle  of  peace  and  order. 
There  are  exceptions  to  this,  where  wrongdoers 
intentionally,  or  the  ignorant  innocently,  violate 
the  established  customs,  and  there  are  other  excep- 
tions where  from  the  novelty  of  the  transactions  it 
becomes  matter  of  doubt  even  with  experts  to  what 
class  the  conduct  in  question  belongs.  Inasmuch  as 


Law,  Its  Origin 

human  affairs  are  never  precise  repetitions,  and  the 
complicated  societies  of  civilisation  are  in  a  con- 
dition of  constant  change,  there  are,  in  point  of 
absolute  number,  many  of  such  cases,  although 
they  are  few  when  compared  with  the  whole  volume 
of  conduct.  They  constitute  the  subjects  of  litigation 
which  engage  the  attention  of  courts,  and  if  we 
follow  the  discussions  there  we  find  the  difficulty 
to  be  that  there  is  no  known  legal  class  of  actions 
under  which  they  can  be  clearly  and  at  once  brought, 
and  the  effort  of  the  judge  is  to  find  the  best  rule  by 
which  the  case  may  be  determined.  In  this  search 
the  things  considered  are  the  ordinary  ways  in  which 
the  business,  the  intercourse,  and  the  conduct  of 
life  are  conducted,  and  whether  the  conduct  in 
question  is  in  harmony  with  them,  or,  if  not,  in  what 
particular  it  is  discordant.  This  is  manifestly  a 
study  of  the  consequences  of  the  conduct,  and  if 
among  them  there  is  found  in  that  conduct  any 
element  which  operates  to  defraud  or  deceive  or 
invade  the  rights  of  person  or  property  as  they  are 
settled  by  custom,  or  to  betray  trust  and  confidence, 
or  in  any  way  to  disappoint  fair  expectation,  the 
conduct  is  in  violation  of  custom  and  is  placed  in 
the  class  of  things  condemned  by  the  law.  The 
final  study  of  the  highest  court  of  appeal  is,  there- 
fore, in  the  last  analysis,  that  same  study  of  conduct 
and  consequence  in  which  all  men  are  engaged  every 
day  and  which  began  when  man  first  began  to  act. 

Even  where  the  question  is  one  of  the  interpreta- 
tion of  written  law,  involving  the  meaning  of  words 
and  the  legislative  intent,  the  things  contended 


Growth  and  Function  173 

about  in  argument  and  decision  are  the  customary 
employment  of  language,  the  customary  motives 
of  action,  and  the  mischievous  departures  from 
established  custom,  which  the  statute  was  probably 
intended  to  remedy. 

The  final  conclusion  of  the  inquiry,  what  rule  or 
rules  in  point  of  fact  governed  human  conduct,  was 
that,  so  far  as  social  conduct  is  concerned,  custom  is 
not  simply  one  of  the  sources  of  law  from  which 
selections  may  be  made  and  converted  into  law  by 
the  independent  and  arbitrary  fiat  of  a  legislature  or 
a  court,  but  that  law,  with  the  narrow  exception  of 
legislation,  is  custom,  and,  like  custom,  self-existing 
and  irrepealable. 

The  necessary  operation  and  therefore  the  function 
of  law  thus  defined  we  found  to  be  the  marking  out 
of  the  largest  area  within  which  each  individual 
could  freely  move  and  act  without  invading  the  like 
freedom  in  every  other — that  is,  to  insure  the  largest 
possible  liberty. 

I  shall  have  next  to  deal  with  the  consequences 
of  the  conclusions  thus  summarised. 

The  first  which  I  note  is  that  they  involve  the  re- 
jection of  the  commonly  accepted  theories  of  the 
law.  In  speaking  in  the  first  of  these  lectures  of  the 
great  number  and  variety  of  definitions  which  have 
been  given  of  law,  I  observed  that,  however  differing 
from  one  another  in  expression  and  in  the  less  im- 
portant particulars,  they  might  be  arranged  in  one 
or  the  other  of  two  classes,  one  seeking  to  establish 
law  upon  the  basis  of  absolute  Justice  and  Right, 
and  the  other  making  it  proceed  from  the  arbitrary 


i74  Law,  Its  Origin 

command  of  the  Sovereign  State;  one  seeking  to 
enthrone  over  human  conduct  a  rule  of  Order,  and 
the  other  a  rule  of  Force ;  one  fairly  represented  by 
the  theory  of  Natural  Law,  and  the  other  by  the 
doctrines  of  Hobbes,  Bentham,  Austin,  and  others 
that  law  is  a  command.  I  have  some  observations 
to  make  concerning  each  class  of  these  two  opposite 
tendencies. 

Historically  the  doctrine  of  the  Law  of  Nature 
had  its  origin  with  the  philosophic  jurists  of  Rome, 
or,  at  least,  the  first  enunciation  we  have  of  it  came 
from  them,  and  by  Nature  they  intended  the  Author 
of  Nature,  Jove  or  God.  They  declared  that  the 
true  and  fundamental  law  was  in  the  mind  of  the 
Deity  himself  when  he  created  the  universe.  Cicero 
sets  forth  this  view  in  his  treatises  De  Legibus  and 
De  Republica  with  great  nobility  of  eloquence. 
According  to  him,  the  fundamental  law  which  com- 
mands and  forbids  is  the  right  reason  of  Supreme 
Jove.  Quam  ob  rem  lex  vera  atque  princeps  apta  ad 
jubendum  et  vetandum  ratio  est  recta  summi  Jovis.1 
This  pagan  view  has  been  accepted  by  many  Christian 
jurists,  of  whom  Blackstone  is  a  good  example. 
He  says: 

"  This  law  of  nature  being  coeval  with  mankind,  and  dictated 
by  God  himself,  is  of  course  superior  in  obligation  to  any 
other.  It  is  binding  over  all  the  globe,  in  all  countries,  and 
at  all  times;  no  human  laws  are  of  any  validity,  if  contrary 
to  this ;  and  such  of  them  as  are  valid  derive  all  their  force 
and  all  their  authority,  mediately  or  immediately,  from  this 
original."  2 

i  De  Leg,  ii.,  4. 
3  Bl.,  book  i.,  p.  41. 


Growth  and  Function  175 

Now,  in  the  language  of  Lord  Bacon,  "I  would 
rather  believe  all  the  fables  of  the  Talmud  and  the 
Alcoran  than  that  this  universal  frame  is  without 
a  Mind";  but  science  is  the  orderly  arrangement  of 
things  we  can  know,  and  not  of  things  we  cannot 
know,  and  I  think  there  is  no  irreverence  in  dis- 
missing from  our  attention  those  theories  which 
rest  upon  our  feeble  imaginations  of  the  Divine 
Nature;  indeed,  I  think  the  term  irreverence  more 
properly  belongs  to  the  methods  I  am  declaring  in- 
sufficient. 

"God  hath  not  made"  [I  am  quoting  the  language  of  Sir 
Thomas  Browne]  "a  creature  that  can  comprehend  him;  't  is 
a  privilege  of  his  own  nature;  '  I  am  that  I  am'  was  his  own 
definition  unto  Moses;  and  't  was  a  short  one  to  confound 
mortality,  that  durst  question  God,  or  ask  him  what  he  was."1 

We  must,  indeed,  in  tracing  the  line  of  causation 
along  which  the  facts  of  any  science  are  to  be  ar- 
ranged, come  finally  to  some  ultimate  barrier  beyond 
which  we  cannot  pass;  but  we  should  not  too  soon 
conclude  that  the  barrier  has  been  reached.  The 
rule  of  dramatic  poetry,  not  to  introduce  a  God  upon 
the  stage  unless  a  crisis  appears  demanding  the 
Divine  intervention,  should  be  the  rule  of  philosophy 
also: 

Nee  deus  intersit,  nisi  dignus  vindice  nodus  incident. 

But  the  prodigious  space  which  the  doctrine  of  the 
Law  of  Nature  has  filled  in  philosophical  speculation 
as  the  foundation  both  of  Ethics  and  Law  is  itself 
a  phenomenon  to  be  explained.  It  could  hardly 

1  Sir  Thomas  Browne,  Religio  Medici,  sec.  xi. 


i/6  Law,  Its  Origin 

have  assumed  such  magnitude  unless  it  were  sup- 
ported by  some  great  underlying  truth,  and  if  the 
explanation  should  not  afford  a  reconciliation  be- 
tween this  theory  of  law  and  the  views  I  have 
adopted,  those  views  would  be  open  to  a  doubt 
more  serious  than  any  I  have  as  yet  encountered. 

We  must  turn  to  the  historical  origin  of  this  doc- 
trine, which,  as  I  have  said,  first  appeared  among 
the  philosophic  jurists  of  Rome.  While  the  territory 
of  Rome  was  confined  within  its  Italian  limits, 
justice  was  administered  in  her  courts  according 
to  the  customs  of  the  city,  in  which  there  was  a 
large  element  of  technicality.  This  did  not  prevent 
the  doing  of  substantial  justice,  for  these  technicali- 
ties and  peculiarities  inhered  in  the  customs  and 
thus  entered  into  the  contemplations  of  individuals 
in  their  dealings  with  each  other.  But  with  the 
expansion  of  Roman  dominion  and  the  enlargement 
of  commerce  came  a  great  influx  of  provincials  and 
foreigners,  and  extensive  dealings  between  them  and 
the  native  citizens.  In  any  litigations  arising  out 
of  such  dealings  it  would  have  been  gross  injustice 
to  apply  the  peculiar  civil  law  of  the  city.  Any 
person,,  whether  he  be  called  judge,  referee,  arbitra- 
tor, or  by  whatever  name,  whose  office  it  is  to  settle 
disputes  between  others,  must  of  necessity  base  his 
decision  upon  what  he  deems  the  parties  fairly,  and 
therefore  probably,  expected  from  each  other,  and 
in  this  task,  when  the  dispute  is  between  citizens  of 
different  States  having  many  different  customs,  he 
seeks  to  find  customs  and  ways  which  are  common 
to  men  without  regard  to  their  particular  nation- 


Growth  and  Function  177 

ality .  According  to  the  civil  law  of  Rome,  a  contract 
might  not  be  valid  unless  some  technical  formula 
were  complied  with,  and  consequently  Roman  citi- 
zens would  not  regard  themselves  as  bound  in  the 
absence  of  such  compliance.  But  men,  as  men,  of 
whatever  nation,  if  they  communicate  at  all,  have 
means  by  which  they  may  express  terms  and  con- 
ditions and  assent  and  dissent,  and  where  they  do 
this  they  expect  compliance  with  their  consensual 
engagements.  A  method  of  treatment  in  harmony 
with  these  conditions  was  applied  by  the  Praetor 
Peregrinus  of  Rome  in  litigations  between  Roman 
citizens  and  provincials  or  foreigners,  and  while  the 
Praetor  Urbanus  regarded  the  Twelve  Tables  and 
the  Praetorian  edicts,  he  looked  only  to  the  conduct 
of  the  parties,  its  character  and  consequences.  Two 
bodies  of  laws  consequently  grew  up  at  the  side  of 
each  other,  the  jus  civile  limited  to  transactions 
between  Roman  citizens,  and  the  jus  gentium  as 
wide  in  its  application  as  the  inhabited  globe.  The 
superiority  of  the  latter  as  a  scientific  system  was 
recognised  by  the  Roman  lawyers,  and  the  domestic 
jurisprudence  became  from  time  to  time  enriched  by 
borrowing  from  it  many  sound  precepts.  The  philo- 
sophic jurists,  among  whom  Cicero  was  a  shining 
example,  when  they  came  to  inquire  into  the  nature 
of  Law,  could  not  find  its  real  foundation  in  the  nar- 
row jus  civile;  but  in  the  jus  gentium  they  found 
four  characteristic  features:  (i)  that  it  was  not 
enacted  by  any  man  or  body  of  men,  for  the  Praetor 
Peregrinus  did  not,  any  more  than  the  modern 
judge,  presume  to  make  law;  (2)  that  it  could  not 

12 


178  Law,  Its  Origin 

be  repealed,  and  was  therefore  self -existent ;  (3) 
that  its  particular  rules  were  reached  by  the  processes 
of  reason;  (4)  that  it  satisfied  the  universal  senti- 
ment of  justice.  Whence  did  it  proceed,  and  from 
what  source  did  it  derive  its  authority?  It  seemed 
inscrutable,  and  the  only  answer  they  could  give 
to  the  question  was  to  ascribe  the  origin  and 
authority  of  law  to  that  same  Divine  Power  to  which 
they  attributed  the  other  mysterious  phenomena  of 
the  universe,  the  movements  of  the  heavenly  bodies, 
the  successions  of  the  seasons,  the  storms  and  tides 
of  the  ocean.  It  was  Nature  or  God.  Had  they 
studied  the  facts  of  consciousness,  and  learned  that 
conduct  was  necessarily  exhibited  in  the  form  of 
habit  and  custom,  they  would  have  seen  that  the 
origin  of  law  rested  in  a  self-governing  principle  of 
society;  and  if  they  had  carefully  scrutinised  the 
methods  of  the  judicial  tribunals,  they  would  have 
seen  that  it  consisted  in  the  study  of  conduct  and 
its  consequences  with  the  view  of  determining  what 
was  in  accordance  with  custom  or  fair  expectation, 
and  that  such  study  was  simply  the  exercise  of  our 
ordinary  reasoning  powers  upon  the  subject  of  con- 
duct; in  this  way  they  would  have  reached  the 
enlightening  conclusion  that  law  was  tantamount  to 
custom.  Any  further  inquiry  would  be  how  and  why 
our  natures  were  so  made  as  to  compel  us  to  think 
and  act  in  such  a  way — an  inquiry  which  would  have 
baffled  them  no  more  than  it  baffles  us.  But  in  the 
law  of  custom  thus  reached,  they  would  have  found 
all  the  characteristics  which  they  perceived  in  what 
they  denominated  the  Law  of  Nature.  The  Roman 


Growth  and  Function  1 79 

jurists  have  conferred  upon  posterity  by  their  con- 
ception of  the  Law  of  Nature  one  great  benefit,  a 
clear  apprehension  of  the  fundamental  difference 
between  the  written  and  the  unwritten  law. 

The  doctrine  which  has  in  modern  times  divided 
with  that  of  the  Law  of  Nature  the  opinions  of 
juridical  writers  is  that  which  defines  Law  as  the 
command  of  the  Sovereign  power  in  a  State.  It  was 
not  at  first  the  product  of  an  original  and  inde- 
pendent inquiry  into  the  nature  of  law,  but  was 
contrived  to  answer  the  supposed  exigencies  of 
political  necessity.  It  is  first  to  be  found  set  forth 
in  the  writings  of  the  celebrated  Thomas  Hobbes  in 
the  early  part  of  the  seventeenth  century.  He  was 
a,  thorough  royalist  in  his  political  views,  and  writing 
at  the  time  of  the  struggles  against  the  House  of 
Stuart,  his  main  purpose  was  not  so  much  to  set 
forth  a  new  theory  of  the  ordinary  law,  as  to  justify 
the  exercise  of  a  severe  authority  in  repressing 
rebellion  against  civil  government.  He  was  a  rigid 
as  well  as  a  profound  thinker,  and  never  shrank 
from  any  of  the  logical  consequences  of  his  main 
tenets.  His  view  was  that  the  condition  of  man 
before  the  organisation  of  society  was  a  state  of  an- 
archy or  war,  in  which  every  man's  hand  was  against 
his  fellow,  and  that  the  only  way  of  escape  from 
such  miseries  was  to  be  found  in  organised  society, 
and  that  society  was  the  more  effective  and  bene- 
ficial the  more  the  corporate  power  became  com- 
plete and  absolute.  His  ideal,  therefore,  was  that 
of  an  unlimited  and  unquestioned  supreme  public 
authority,  preferably,  though  not  necessarily,  a 


i8o  Law,  Its  Origin 

monarchical  one.  In  his  view  the  authority  of  the 
State  should  be  supreme  everywhere.  Whatever 
the  State  commanded  was  just,  and  because  the 
State  commanded  it,  and  whatever  it  chose  to  en- 
force must  be  taken  to  be  its  command.  His  defi- 
nition of  law  thus  became  "the  speech  of  him  who 
by  right  commands  somewhat  to  be  done  or  omitted." 
Nor  did  Jeremy  Bentham,  the  next  distinguished 
supporter  of  the  theory,  find  his  way  to  its  adoption 
by  a  scientific  inquiry  into  the  nature  of  law.  He 
accepted  it  because  it  suited  his  particular  views  and 
purposes.  He  was  primarily  a  moralist,  and  believed 
that  he  had  discovered  the  Summum  Bonum  in 
what  he  called  the  principle  of  Utility,  which  he 
described  by  the  maxim,  "The  greatest  good  to 
the  greatest  number."  It  did  not  occur  to  him  that, 
in  the  order  of  nature,  happiness  could  be  secured 
by  man  only  by  his  own  efforts  and  discipline  in 
attending  to  the  consequences  of  conduct  and  select- 
ing those  forms  which  experience  taught  him  would 
secure  it.  He  thought  that  the  pathway  to  happi- 
ness for  all  men  could  be  found  out  by  one,  or  a  few 
wise  ones,  and  man  could  be  compelled  to  follow  it 
and  thus  be  made  happy  by  law.  He  found  a  great 
obstacle  in  his  way ;  this  was  the  practice  of  society 
to  conform  to  rules  of  conduct  declared  by  the 
judges.  He  insisted  that  they  really  made  the 
rules  while  pretending  only  to  find  them,  and  made 
them  without  authority,  and  he  came  to  regard  the 
unwritten  law  as  a  hateful  usurpation,  and  he  de- 
scribed the  common  method  adopted  by  the  judges 
in  making  use  of  legal,  fictions  in  order  to  make 


Growth  and  Function  181 

legal  remedies  effectual,  as  "a  wilful  falsehood 
having  for  its  object  the  stealing  of  legislative  power 
by  and  for  hands  which  could  not,  or  durst  not, 
openly  claim  it."  The  theory  of  Hobbes  exactly 
suited  his  purpose.  If  law  was  a  command  alone, 
the  judges  would  be  obliged  to  look  for  their  law  to 
the  only  power  that  could  make  an  authoritative 
command,  namely,  the  Sovereign  State,  and  the  great 
condition  of  public  happiness  would  be  supplied  by 
the  preparation  of  a  code  containing  the  most  wisely 
selected  rules,  and  its  adoption  by  legislative  enact- 
ment. John  Austin,  whose  lectures  On  the  Province 
of  Jurisprudence  Determined  have  exercised  so  wide 
an  influence,  was  a  disciple  of  Bentham  and  a  believer 
in  the  doctrine  of  Utility.  But  he  had  not  that  ab- 
horrence of  the  unwritten  law  which  animated  his 
master.  He  believed  that  ultimately  a  complete 
written  code  enacted  by  legislation  would  be  the 
perfection  of  law,  but  he  doubted  whether  this  was 
immediately  practicable.  His  diagnosis  of  the 
actual  condition  of  the  administration  of  law  seemed 
to  be  that  mankind  had  stupidly  and  unnecessarily, 
as  if  for  the  want  of  competent  advice  and  leadership, 
fallen  into  the  blunder  of  allowing  blind  custom, 
instead  of  reason,  to  regulate  their  conduct,  as  if 
reason  were  some  special  faculty  which  could  reach 
forward  and  discover  those  true  principles  of  law 
and  government  which  ought  everywhere  to  be 
adopted.  The  following  language  employed  by  him 
is  indicative  of  his  view: 

"Many  of  the  legal  and  moral  rules  which  obtain  in  the  most 
civilised  communities  rest  upon  brute  custom  and  not  upon 


1 82  Law,  Its  Origin 

manly  reason.  They  have  been  taken  from  preceding'genera- 
tions  without  examination,  and  are  deeply  tinctured  with 
the  childish  caprices  and  narrow  views  of  barbarity.  And 
yet  they  have  been  cherished  and  perpetuated  through  ages 
of  advancing  knowledge  to  the  comparatively  enlightened 
period  in  which  it  is  our  happiness  to  live." 

Believing  with  Bentham  that  "the  greatest  good  to 
the  greatest  number"  was  discernible  by  reason, 
and  should  be  made  the  rule  of  conduct  by  positive 
law,  he  made  law  to  consist  wholly  in  command,  and 
framed  his  well-known  formula:  ''Every  positive  law 
is  set  by  a  sovereign  person  or  by  a  sovereign  body 
of.  persons  (a  legislature)  to  a  member  or  members 
of  the  independent  political  society  wherein  that 
person  or  body  is  sovereign  or  supreme." 

This  theory  and  definition  of  law  has  an  apparent 
partial  foundation.  It  properly  defines  legislation — 
that  is,  law  consciously  enacted  by  men,  although  a 
qualification  is  needed  even  here;  beyond  this  it 
seems  to  me  entirely  erroneous.  Inasmuch  as  in  the 
view  I  have  taken  substantially  the  whole  private 
law  which  governs  much  the  larger  part  of  human 
conduct  has  arisen  from  and  still  stands  upon  custom, 
and  is  the  necessary  product  of  the  life  of  society, 
and  therefore  incapable  of  being  made  at  all,  the 
opposition  between  this  view  and  the  theory  of 
Austin  is  irreconcilable.  Inasmuch  as  I  have  estab- 
lished, as  I  suppose,  my  own  view,  I  might,  perhaps, 
regard  this  opposition  as  a  sufficient  refutation  of 
that  theory,  but  a  separate  and  distinct  exposure  of 
its  errors  and  inconsistencies  will  furnish  additional 
confirmation  to  the  doctrine  I  have  supported. 


Growth  and  Function  183 

While  the  Austinian  definition  encounters  diffi- 
culty as  soon  as  we  come  to  consider  the  unwritten 
law,  Austin  felt  that  his  master,  Bentham,  had  fallen 
into  a  gross  error  in  condemning  and  stigmatising 
this  branch  of  law  as  the  product  of  a  fraudulent 
usurpation. 

He  regarded  the  bulk  of  this  law  as  a  rational  and 
legitimate  system  of  rules.  He  felt  that  it  must  in 
some  way  find  a  place  under  his  theory,  and  his  con- 
trivance was  to  assert  that  the  judges  made  the  law 
declared  by  them,  and  made  it,  not  by  any  usur- 
pation, as  Bentham  insisted,  but  rightfully,  in 
virtue  of  an  authority  delegated  to  them  by  the 
Sovereign.  Here,  however,  he  was  met  by  the  hard 
fact  that  no  one  of  the  long  line  of  illustrious  judges 
who  had  occupied  the  English  bench  ever  supposed 
for  a  moment  that  he  was  making  law,  either  by 
virtue  of  a  delegated  authority  or  otherwise,  and 
that  all,  or  nearly  all,  would  indignantly  have  re- 
pelled any  imputation  of  doing  it;  but  he  treated 
their  view  with  contempt,  speaking  of  it  thus:  "The 
childish  fiction  employed  by  our  judges,  that  judiciary 
or  common  law  is  not  made  by  them,  but  is  a  miracu- 
lous something  made  by  nobody,  existing,  I  suppose, 
from  eternity,  and  merely  declared  from  time  to 
time  by  the  judges.  "* 

But  where  does  he  find  an  authority  in  the  judges 
to  make  law  in  the  shape  of  commands,  for  certainly 
they  are  not  themselves  sovereign  or  a  sovereign 
body? 

His  way  of  meeting  this  difficulty  is  by  imputing 

»  Austin  §  919 


1 84  Law,  Its  Origin 

the  action  of  the  judges  to  the  real  sovereign.  He 
declares  that  an  authority  to  command  is  delegated 
by  the  sovereign  to  the  judges  and  that  they  com- 
mand by  virtue  of  this  delegation.  Both  these 
assertions  are  pure  assumptions.  The  closest  scru- 
tiny can  find  no  such  delegation,  nor  any  command 
in  pursuance  of  it.  Austin  concedes  that  there  is  no 
direct  evidence  of  such  delegation,  but  says  that 
there  is  something  equivalent  to  it,  namely,  the 
fact  that  the  sovereign  has  the  power  to  reject  or 
disapprove  the  commands  of  the  judges,  and  by  not 
doing  so  ratifies  them.  But  this  is  attempting  to 
prove  one  assumption  by  making  another,  or  rather 
two  others.  In  the  first  place,  under  the  familiar 
doctrine  that  ratification  is  equivalent  to  an  original 
authority,  it  is  an  indispensable  requisite  that  the 
principal  should  know  the  act  of  the  agent  which  he 
intends  to  ratify;  but  the  supposition  that  the 
sovereign  person,  or  sovereign  legislature  knows 
all  the  decisions  of  the  courts,  or  any  considerable 
part  of  them,  is  utterly  unfounded.  To  assume  it  is 
not  merely  to  assume  a  thing  which  we  do  not  know 
to  be  true,  but  one  which  we  know  to  be  untrue.  The 
second  assumption  is  that  of  a  ratification  by  the 
sovereign.  What  evidence  is  there  of  this?  None 
can  be  discovered.  All  we  have  is  the  silence  of  the 
sovereign.  There  is  indeed  in  the  law  of  agency  a 
maxim  that  where  a  principal  has  knowledge  of  an 
act  of  his  agent  and  makes  no  objection  to  it,  it 
may  be  inferred  that  he  ratifies  it,  and  this  is  the 
ground  upon  which  Austin  bases  his  assertion  of 
ratification. 


Growth  and  Function  185 

Let  us  see  to  what  this  reasoning  will  lead.  The 
theory,  it  will  be  borne  in  mind,  is  of  the  crea- 
tion— the  origin — of  law.  Now  upon  the  doctrine 
that  the  sovereign,  by  his  silence,  ratifies  the  acts 
of  his  judges,  he  must  ratify  just  what  they  do, 
their  real  action,  and  nothing  else.  But  they  make 
no  commands  at  all  concerning  conduct;  they 
declare  no  rule;  they  simply  sit  in  judgment  upon 
controversies  between  litigants  in  a  particular  case, 
and  declare  that  one  shall  or  shall  not  pay  money 
or  deliver  property,  or  accord  some  special  relief, 
to  the  other.  It  might  be  said  by  a  supporter  of 
Austin's  theory  that  although  this  is  all  they  do  in 
form,  yet  in  fact,  inasmuch  as  they  make  their 
decisions  upon  grounds  and  for  reasons  generally 
stated  by  them,  they  really  declare  what  must  be 
regarded  as  law  at  least  for  all  like  cases.  This  is  a 
concession  that  the  sovereign  ratifies  what  they 
really  do,  and  this  is  to  declare  that  by  virtue  of 
some  already  existing  law  certain  relief  shall  or 
shall  not  be  awarded.  What  they  really  do,  there- 
fore, is  not  to  create  law,  but  to  declare  that  the 
law  already  exists.  If  what  the  judges  did  was  to 
declare  a  law  not  before  existing,  the  subjection  by 
them  of  one  of  the  parties  to  liability  for  an  infrac- 
tion of  the  law,  in  a  transaction  occurring  before 
the  existence  of  the  law,  would  be  an  indefensible 
outrage.  Any  one  who  undertakes  to  support 
Austin's  theory  encounters  here  an  ugly  dilemma; 
the  law  by  which  the  judge  makes  a  decision  either 
existed  at  the  time  of  the  transaction  involved  in 
the  case,  or  it  did  not,  and  was  made  by  the  judge ; 


1 86  Law,  Its  Origin 

if  it  did  exist,  the  judge  did  not  make  it,  and  the 
imagined  ratification  by  the  sovereign  did  not  make 
it,  there  being  no  need  of  his  interposition,  express 
or  implied.  If  it  did  not  exist  at  the  time  of  the 
transaction,  then  what  the  judge  has  done  and  the 
sovereign  ratified  is  to  compel  a  man  to  suffer  for 
the  violation  of  a  law  committed  before  the  law  was 
made.  No  theory  of  law  can  stand  which  involves 
such  a  consequence.  Our  courts  act  consistently, 
and  the  record  of  an  action  exhibits  a  perfectly 
logical  process;  but  upon  the  Austinian  theory  it 
would  present  a  revolting  absurdity.  Let  me  illus- 
trate the  operation  of  that  theory.  A  plaintiff  brings 
his  action  in  a  novel  case,  never  before  considered, 
alleging  certain  facts  and  claiming  that  by  existing 
law  he  is  entitled  to  recover  from  the  defendant  a 
thousand  dollars  for  an  injury  inflicted  upon  him; 
the  defendant  appears  and  admits  the  facts  alleged, 
but  insists  that  by  existing  law  he  did  only  what  he 
had  good  right  to  do.  The  learned  judge  finds  that 
neither  party  is  right  in  his  claim,  because,  as  he 
says,  there  is  no  existing  law  applicable  to  the  case, 
none  having  been  made;  but  he  is  clearly  of  the 
opinion  that  there  ought  to  be  one  which  would 
support  the  plaintiff's  claim,  and  that  it  is  his  duty, 
as  the  delegate  of  the  sovereign,  to  make  it,  which 
duty  he  proceeds  to  perform,  but  in  a  most  amazing 
manner.  He  does  not  dismiss  the  suit  and  at  the 
same  time  declare  what  in  all  future  like  cases  the 
law  shall  be,  but,  regretting,  perhaps,  the  indirect 
manner  in  which  he  must  perform  his  duty  and  the 
individual  suffering  he  must  inflict,  he  condemns 


Growth  and  Function  187 

the  defendant  to  do,  what  he  declares  there  was  no 
law  requiring  him  to  do,  namely,  to  pay  the  thousand 
dollars. 

And  yet  this  definition  of  law,  though  it  has  been 
subjected  recently  to  much  criticism,  is  still  perhaps 
more  generally  accepted  in  England  and  America 
than  any  other.  Sir  Henry  Sumner  Maine,  whose 
writings  have  commanded  so  much  attention,  while 
he  has  pointed  out  some  of  its  errors,  has  given  to 
it  his  general  approval  and  praise.  He  declares 
that  "to  Bentham,  and  even  in  a  higher  degree  to 
Austin,  the  world  is  indebted  for  the  only  existing 
attempt  to  construct  a  system  of  jurisprudence  by 
strict  scientific  process  and  to  found  it,  not  on  b 
priori  assumption,  but  on  the  observation,  compari- 
son, and  analysis  of  the  various  legal  conceptions."1 
He  has  partially  seen  the  absurd  consequences  of 
Austin's  doctrine  of  ratification,  and  says:  "It  is 
a  better  answer  to  this  theory  than  Austin  would 
perhaps  have  admitted,  that  it  is  founded  on  a  mere 
artifice  of  speech,  and  that  it  assumes  Courts  of 
Justice  to  act  in  a  way  and  from  motives  of  which  they 
are  quite  unconscious."2  Such  difficulties,  though 
they  moderate,  do  not  by  any  means  destroy,  Prof. 
Maine's  estimate  of  the  correctness  of  the  Austinian 
doctrine,  and  he  thinks  a  more  complete  under- 
standing of  the  fundamental  element  of  that  doc- 
trine will  conduce  to  a  recognition  of,  at  least,  its 
theoretical  soundness  and  of  its  value.  This  funda- 
mental element  he  makes  to  be  Austin's  conception 

»  Maine,  Early  History  of  Institutions,  p.  343. 
*  Ibid.,  p.  364. 


1 88  Law,  Its  Origin 

of  Sovereignty,  to  which  he  invokes  especial  atten- 
tion. He  says: 

"When,  however,  it  has  once  been  seen  that  in  Austin's  system 
the  determination  of  Sovereignty  ought  to  precede  the 
determination  of  Law,  when  it  is  once  understood  that  the 
Austinian  conception  of  Sovereignty  has  been  reached  through 
mentally  uniting  all  forms  of  government  in  a  group  by  con- 
ceiving them  as  stripped  of  every  attribute  except  coercive 
force,  and  when  it  is  steadily  borne  in  mind  that  the  deductions 
from  an  abstract  principle  are  never,  from  the  nature  of  the 
case,  completely  exemplified  in  facts,  not  only,  as  it  seems 
to  me,  do  the  chief  difficulties  felt  by  the  student  of  Austin 
disappear,  but  some  of  the  assertions  made  by  him,  at  which 
the  beginner  is  most  apt  to  stumble,  have  rather  the  air  of 
self-evident  propositions.1  " 

Let  me  then  give  that  close  attention  to  this  concep- 
tion of  sovereignty  which  Prof.  Maine  commends, 
and  to  his  statement  of  it.  He  says  that  Austin's 
doctrine  of  Sovereignty 

"is  as  follows:  There  is,  in  every  independent  political  com- 
munity— that  is,  in  every  political  community  not  in  the  habit 
of  obedience  to  a  superior  above  itself — some  single  person  or 
some  combination  of  persons  which  has  the  power  of  compelling 
the  other  members  of  the  community  to  do  exactly  as  it 
pleases.  This  single  person  or  group — this  individual  or  this 
collegiate  Sovereign  (to  employ  Austin's  phrase) — may  be 
found  in  every  independent  political  community  as  certainly  as 
the  centre  of  gravity  in  a  mass  of  matter.  .  .  .  This  Sovereign, 
this  person  or  combination  of  persons,  universally  occurring  in 
all  independent  political  communities,  has  in  all  such  com- 
munities one  characteristic  common  to  all  the  shapes  Sov- 
ereignty may  take,  the  possession  of  irresistible  force,  not 
necessarily  exerted,  but  capable  of  being  exerted.2  " 

1  Maine,  Early  History  of  Institutions,  p.  362. 

2  Ilnd.,  pp.  349-350- 


Growth  and  Function  189 

And  further,  he  says: 

"The  way  in  which  Hobbes  and  he  (Austin)  bring  such  bodies 
of  rules  as  the  Common  law  under  their  system  is  by  insisting 
on  a  maxim  which  is  of  vital  importance  to  it — 'Whatever 
the  Sovereign  permits  he  commands.'  Until  customs  are 
enforced  by  Courts  of  Justice,  they  are  merely  'positive 
morality,'  rules  enforced  by  opinion,  but,  as  soon  as  Courts 
of  Justice  enforce  them,  they  become  commands  of  the 
Sovereign,  conveyed  through  the  Judges,  who  are  his  dele- 
gates or  deputies.1" 

But  this  explicit  statement  of  Austin's  conception 
of  sovereignty  serves  only  to  emphasise  its  falsity. 
It  is  useful  only  as  a  foundation  for  the  proposition 
that  the  law  declared  by  the  judges  is  really  made 
by  them  as  the  agents  of  the  sovereign  who  ratifies 
their  action  and  is  thus  adopted.  The  doctrine  of 
ratification  necessarily  assumes  power  in  the  princi- 
pal to  perform  the  act.  I  think  I  have  sufficiently 
exposed  already  the  error  in  this  notion  of  law- 
making  by  the  assumed  ratification  of  a  sovereign 
possessing  an  assumed  absolute  power,  but  I  may 
show  that  Maine's  own  argument  refutes  his  own 
proposition.  Let  me  throw  that  argument  into 
syllogistic  form.  This  is  the  first  premise  in  the  syl- 
logism: Whatever  the  sovereign  permits  he  com- 
mands. The  second  premise  is — He  permits  courts 
of  justice  to  sit  and  decide  controversies  by  law 
which  they  declare  to  be  already  in  existence', 
and  the  consequence  is  inevitable:  he  permits  the 
courts  of  justice  to  so  sit  and  declare.  The  declara- 
tion of  the  judges  is  the  declaration  of  the  sovereign. 

1  Maine,  Early  History  of  Institutions,  pp.  363-364. 


190    Law  :  Origin,  Growth,  and  Function 

He  commands  it  for  he  permits  it,  and  therefore  the 
sovereign  declares  that  the  law  is  not  made,  but  that 
it  already  exists!  Bentham  may  insist,  as  he  does, 
that  this  declaration  by  the  judges  is  a  "fraudulent 
pretence"  to  conceal  their  usurpation  of  legislative 
power;  Austin  may  aver,  as  he  does,  that  it  is  a 
"childish  fiction,"  but  it  is  the  "fraudulent  pre- 
tence," or  the  "childish  fiction"  of  the  sovereign 
himself.  This  is  the  severe  logical  consequence  of 
Maine's  defence  of  Austin's  conception  of  sover- 
eignty. It  establishes,  not  his  definition  of  law, 
but  the  contrary  one. 


LECTURE  VIII. 

THERE  are  many  who,  though  not  accepting  the 
theories  of  Bentham  and  Austin,  have  yet  a  feel- 
ing that  the  distinction  between  finding  and  making 
the  law  in  a  truly  novel  case  is  but  a  fanciful  one, 
and  that  what  is  really  done  by  declaring  the  law  in 
such  a  case,  it  being  before  unknown,  is  to  make  it; 
they  admit  the  seeming  injustice  of  holding  persons 
responsible  for  a  violation  of  law  not  existing  at  the 
time  of  the  action  in  controversy,  but  think  it  is  no 
greater  than  to  hold  them  responsible  for  a  violation 
of  a  law  at  the  time  unknown.  Such  doubts  deserve 
respectful  treatment.  Upon  the  view  that  law  is 
custom,  the  maxim  that  all  are  presumed  to  know 
the  law  is  well  founded  and  reasonable.  Custom  is 
the  one  thing  that  all  may  safely  be  presumed  to 
know.  It  is — what  is  more  and  better  than  known 
— felt.  There  is  no  injustice,  therefore,  in  a  rule 
which  subjects  men  to  the  obligation  of  existing 
custom.  There  will  be  some  cases  of  real  doubt,  but 
in  all  such  cases  the  act  or  conduct  concerning  which 
the  doubt  exists  really  belongs  to  some  class.  It 
is  either  something  which  accords  with  fair  expecta- 
tion, or  does  not  so  accord,  and  the  point  is  decided 
by  selected  experts.  As  in  a  game  of  ball  or  other 
athletic  game,  things  will  be  done  on  one  side  which 
will  be  disputed  on  the  other,  and  the  referee  will 

191 


192  Law,  Its  Origin 

be  called  upon  to  decide.  His  decision  will  be  that 
the  thing  objected  to  was  right  or  wrong  according 
to  existing  rules,  and  no  one  will  think  that  he  makes 
the  rule.  The  case  may  be  an  entirely  novel  one  and 
difficult  of  determination,  but  the  defeated  party 
suffers  no  injustice  because  of  this  difficulty.  Both 
sides  had  equal  knowledge  of  the  rules  and  the  exist- 
ence of  difficulty  was  the  same  burden  to  each. 

In  the  great  game  of  society,  as  in  the  little  one  of 
ball,  all  the  players  are  justly  assumed  to  know  the 
rules.  What  is  really  done  in  a  novel  case  is  the 
same  thing  that  is  done  in  every  disputed  case. 
The  features  of  the  transaction  are  subjected  to 
scrutiny  in  order  to  determine  to  what  class  it  belongs. 
The  classes  are  not  made;  they  exist  in  existing 
custom.  There  may  be  a  difficulty  in  ascertaining 
the  class  growing  out  of  the  novelty  of  the  case. 
Some  features  of  the  transaction  suggest  that  it 
should  be  placed  in  one  class,  others  that  it  should 
be  placed  in  another.  The  case  is  in  no  manner 
different  from  that  in  which  a  new  plant  or  animal 
is  discovered  bearing  resemblances  to  more  than 
one  species.  Careful  observation  is  requisite  in  order 
to  determine  under  which  class  it  should  be  ranked 
and  naturalists  may  differ  about  it ;  but  the  eventual 
classification  is  determined  by  the  qualities  which 
are  really  found  in  it,  not  by  any  qualities  artificially 
imputed  to  it.  So  in  the  case  of  a  novel  transaction. 
The  conduct  drawn  in  question  is  either  right  or 
wrong  according  to  its  own  qualities ;  that  is  to  say 
that  its  true  legal  character  is  already  fixed,  and  the 
task  of  the  expert — that  is,  the  judge — is  to  find  these 


Growth  and  Function  193 

true  determining  qualities,  and  when  he  finds  these 
he  finds  the  class  to  which  the  transaction  belongs, 
and  therefore  finds  the  law.  He  would  misconceive 
his  task  if  he  should  say  that  it  was  a  new  case  and, 
without  a  correct  ascertainment  of  its  determining 
features,  should  arbitrarily  declare  it  to  belong  to  a 
class  under  which  its  real  qualities  did  not  bring  it. 
Should  he  do  this  he  would  be  making  the  law,  and, 
indeed,  the  judge  can  only  make  the  law  by  making 
a  wrong  declaration — that  is,  he  can  only  make 
erroneous  law.  If,  without  scrutiny,  he  should 
arbitrarily  assign  the  case  to  its  right  class,  he  would 
correctly  declare  the  law,  but  he  would  not  make  it. 
Thus  far  I  have  accepted  the  proposition  lying  at 
the  basis  of  Austin's  theory  of  sovereignty,  that 
which  the  sovereign  permits  he  commands,  as  true; 
but  only  for  the  sake  of  the  argument,  and  in  order  to 
show  that  the  consequences  deduced  from  it  do  not 
follow;  but  is  it  true  in  fact?  Is  it  true  that  in  every 
independent  human  society  there  is  a  sovereign 
power  so  absolute  as  to  justify  the  inference  that 
what  it  permits  it  commands  ?  To  make  it  sure  that 
I  am  stating  the  proposition  fairly,  I  give  it  in  the 
language  in  which  Prof.  Maine  sets  forth  the  funda- 
mental position  of  the  Austinian  doctrine,  namely, 
that  "in  every  independent  community  of  men 
there  resides  the  power  of  acting  with  irresistible 
force  on  the  several  members  of  that  community. 
This  may  be  accepted  as  actual  fact."1  Prof.  Maine 
here  fully  commits  himself  to  the  assertion  of  Austin, 
that  in  every  independent  State  there  is  in  the 

«  Maine,  Early  History  of  Institutions,  p.  357. 
13 


194  Law,  Its  Origin 

sovereign  or  sovereign  body  the  power  of  doing 
what  he,  in  another  passage  already  cited,  declares 
"exactly  what  he  pleases."  An  assumption  more 
prodigiously  untrue  could  scarcely  be  imagined. 
What !  A  power  in  an  earthly  sovereign  or  sovereign 
body,  to  control  the  conduct  of  all  the  people  in  a 
nation  "exactly  as  it  pleases"?  This  would  be  a 
power  to  make  conduct,  to  construct  life,  to  create, 
if  the  sovereign  so  pleased,  a  new  world!  There  is 
one  Being  alone  to  whom  such  a  power  can  be 
assigned — one  Being  alone  who  can  do  "exactly  as 
He  pleases." 

It  is  quite  needless  for  me  to  expose  by  any  minute 
inquiry  into  the  history  of  societies  the  error  of  the 
assumption,  inasmuch  as  Prof.  Maine  immediately 
proceeds,  quite  without  knowing  it,  to  refute  both 
Austin  and  himself.  He  goes  on  to  say: 

"An  assertion,  however,  which  the  great  Analytical  Jurists 
cannot  be  charged  with  making,  but  which  some  of  their 
disciples  go  very  near  to  hazarding,  that  the  Sovereign  person 
or  group  actually  wields  the  stored-up  force  of  society  by  an 
uncontrolled  exercise  of  will,  is  certainly  never  in  accordance 
with  fact. ' '  [The  italics  are  mine.]  ' '  A  despot  with  a  disturbed 
brain  is  the  sole  conceivable  example  of  such  Sovereignty. 
The  vast  mass  of  influences,  which  we  may  call,  for  shortness, 
moral,  perpetually  shapes,  limits,  or  forbids  the  actual  direction 
of  the  forces  of  society  by  its  Sovereign.1" 

Here  we  have  it  that  while  the  sovereign  actually 
possesses  absolute,  unlimited  power,  he  never  exer- 
cises it!  How  then,  I  beg  to  inquire,  do  we  know 

1  Maine's  Early  History  of  Institutions,  pp.  358—359. 


Growth  and  Function  195 

he  possesses  it?  The  only  evidence  we  have  of 
the  possession  of  any  power  by  a  sovereign  person 
or  body  is  the  actual  exercise  of  it  by  such  person  or 
body.  But  Prof.  Maine  again  relieves  us  of  the 
task  of  detailed  refutation  by  the  language  of  the 
citation  just  made.  "The  vast  mass  of  influences 
which  we  may  call,  for  shortness,  moral,  perpetually 
shapes,  limits,  or  forbids  the  actual  direction  of  the 
forces  of  society  by  its  Sovereign."  It  is  hardly 
worth  while  to  debate  what  sort  of  a  thing  sover- 
eignty is  which  is  perpetually  shaped,  limited,  and 
forbidden  by  a  "vast  mass  of  influences. "  If  there  is 
a  "vast  mass  of  influences"  which  limits  and  forbids 
the  exercise  of  sovereign  power  by  a  monarch  or  a 
legislature,  they  are  the  real  sovereign,  and  what 
other  name  is  there  for  them  than  custom?  Austin's 
conception  is  sovereignty,  plus  a  variety  of  things 
which  prevent  it  from  being  sovereign.  It  is  indeed 
what  Prof.  Maine  styles  it,  "the  result  of  Abstrac- 
tion," and  he  may  add,  an  abstraction  which  de- 
prives the  word,  and  the  theory  in  which  it  plays 
so  essential  a  part,  of  any  significance  or  importance. 
To  assert  complete  sovereignty  in  order  to  con- 
struct a  theory,  and  then  to  say  that  the  assertion 
is  not  in  fact  true,  is  to  commit  felo  de  se.  The 
wonder  is  that  Prof.  Maine,  after  dealing  as  he  does 
with  Austin's  theory,  still  continues  to  regard  it  as 
of  such  high  value  as  a  contribution  to  jurisprudence. 
The  theory  possesses  for  him  the  great  attraction 
of  simplicity,  and  with  an  evident  desire  to  find 
support  for  it  in  the  quarter  where  a  theory  must 
find  support  or  be  dismissed — that  is,  in  the  world 


Law,  Its  Origin 

of  real  fact,  he  casts  a  glance  over  the  history  of 
political  societies  and  the  present  condition  of  social 
government.  He  first  describes  the  sort  of  rule 
which  obtains,  or  has  obtained,  in  a  recent  native 
Indian  empire,  that  of  Runjeet  Singh,  in  the  north- 
western region  of  India,  called  the  Punjab.  No- 
where has  there  been  a  more  absolute  despot,  and 
one  might  think  the  monarch  a  fitting  example  of 
a  sovereign  who  could  do  "exactly  as  he  pleased." 
Prof.  Maine  thus  describes  his  empire: 

"After  passing  through  every  conceivable  phase  of  anarchy 
and  dormant  anarchy,  it  (the  Punjab)  fell  under  the  tolerably 
consolidated  dominion  of  a  half -military,  half-religious  oli- 
garchy, known  as  the  Sikhs.  The  Sikhs  themselves  were  after- 
wards reduced  to  subjection  by  a  single  chieftain  belonging  to 
their  order,  Runjeet  Singh.  At  first  sight,  there  could  be  no 
more  perfect  embodiment  than  Runjeet  Singh  of  Sovereignty, 
as  conceived  by  Austin.  He  was  absolutely  despotic.  Except 
occasionally  on  his  wild  frontier,  he  kept  the  most  perfect 
order.  He  could  have  commanded  anything;  the  smallest 
disobedience  to  his  commands  would  have  been  followed  by 
death  or  mutilation,  and  this  was  perfectly  well  known  to 
the  enormous  majority  of  his  subjects.  Yet  I  doubt  whether 
once  in  all  his  life  he  issued  a  command  which  Austin  would 
call  a  law.  He  took,  as  his  revenue,  a  prodigious  share  of  the 
produce  of  the  soil.  He  harried  villages  which  recalcitrated 
at  his  exactions,  and  he  executed  great  numbers  of  men. 
He  levied  great  armies;  he  had  all  material  of  power  and 
exercised  it  in  various  ways.  But  he  never  made  a  law.  The 
rules  which  regulated  the  life  of  his  subjects  were  derived 
from  their  immemorial  usages,  and  these  rules  were  admin- 
istered by  domestic  tribunals,  in  families  or  village-communi- 
ties— that  is,  in  groups  no  larger,  or  little  larger,  than  those 
to  which  the  application  of  Austin's  principles  cannot  be 
effected,  on  his  own  admission,  without  absurdity. 


Growth  and  Function  197 

"  I  do  not  for  a  moment  assert  that  the  existence  of  such  a 
state  of  political  society  falsifies  Austin's  theory,  as  a  theory. 
The  great  maxim  by  which  objections  to  it  are  disposed  of  is, 
as  I  have  so  often  said  before,  '  What  the  Sovereign  permits,  he 
commands.'  The  Sikh  despot  permitted  heads  of  households 
and  village-elders  to  prescribe  rules,  therefore,  these  rules 
were  his  commands  and  true  laws.1  .  .  .  The  theory  remains 
true  in  such  a  case,  but  the  truth  is  only  verbal."  2 
i 

I  cannot  think  this  argument  entirely  creditable 
to  Maine's  powers  as  a  reasoner.  What  sort  of  truth 
is  that  which  is  only  verbally  true?  A  theory  which 
is  consistent  with  the  facts  is  a  true  theory,  pro- 
vided it  well  explains  the  facts ;  but  a  theory  which 
is  inconsistent  with  the  facts  is  false,  even  as  a  theory ; 
and  to  say  that  it  remains  verbally  true  is  to  say 
something  unintelligible.  That  the  instance  given 
by  him  renders  the  theory  he  endeavours  to  support 
ridiculous,  at  least  at  first  blush,  he  admits,  for  he 
says:  "An  Eastern  or  Indian  theorist  in  law,  to 
whom  the  assertion  was  made  that  Runjeet  Singh 
commanded  these  rules,  would  feel  it  stinging  him 
exactly  in  that  sense  of  absurdity, ' '  etc.  Nevertheless, 
in  Maine's  opinion,  it  is  not  really  ridiculous;  and 
all  that  is  needed  to  reconcile  it  with  sense  and 
truth  is  to  carefully  bear  in  mind  the  fundamental 
assertion  admitted  to  be  untrue,  "What  the  sover- 
eign permits  he  commands."  I  cannot  see  why  we 
may  not  with  as  much  logical  propriety  say,  "What- 
ever the  peasant  permits  he  commands,"  and  thus 
prove  the  peasant  to  be  the  author  of  law.  The 
only  objection  to  it  is  that  we  have  no  evidence  that 

1  Maine's  Early  History  of  Institutions,  p.  381.       *  Ibid.,  p.  382. 


198  Law,  Its  Origin 

the  peasant  has  the  absolute  power  which  the  propo- 
sition tacitly  assumes,  but  that  is  precisely  the 
same  difficulty  under  which  the  assertion  of  Austin, 
thus  defended  by  Maine,  labours.  But  the  real 
purpose  for  which  Maine  introduces  this  example 
of  the  empire  of  Runjeet  Singh  is  to  show  that 
while  with  some  of  the  races  of  men  the  system  of 
Austin  would  be  out  of  place,  in  others  it  would  find 
substantial  support,  and  if  not  now  in  fact  true, 
would  eventually  become  true.  He  takes  the 
dominion  of  Singh  as  a  type  of  "all  Oriental  com- 
munities in  their  native  state."1  Here  we  have 
it  that  over  the  greatest  part  of  the  world  despots 
have  ruled  for  ages,  and  to  a  less  extent  are  still 
ruling,  each  being  of  a  character  more  nearly  than 
anywhere  else  possessing  the  attributes  of  Austin's 
sovereign,  namely,  the  power  to  "do  exactly  as  he 
pleases,"  and  yet  here  more  absolutely  than  any- 
where else  the  law  has  consisted  of  immemorial 
usage,  the  sovereign  never  pretending  to  make  a  law! 

The  early  Aryan  communities,  the  originals  of  all 
the  States  of  the  Western  world,  are  regarded  by 
Prof.  Maine  as  representing  all  social  government 
not  of  the  Oriental  type.  The  early  government  of 
these  he  finds  to  be  the  village  council,  "but  he  also 
finds  that  it  does  not  make  laws,  saying : 

"  If  the  powers  of  this  body  must  be  described  by  modern 
names,  that  which  lies  most  in  the  background  is  legislative 
power,  that  which  is  most  distinctly  conceived  is  judicial  power. 
The  laws  obeyed  are  regarded  as  having  always  existed,  and 
usages  really  new  are  confounded  with  the  really  old."2 

»  Maine's,  Early  History  of  Institutions,  p.  382.    2  Ibid.,  pp.  388-389. 


Growth  and  Function  199 

a  not  unfair  description  of  our  own  unwritten  law. 
Up  to  this  point,  Prof.  Maine  finds  no  appearance  of 
law  in  the  shape  of  a  direct  command  of  the  sover- 
eign, either  in  the  Eastern  or  Western  world,  but  he 
observes  the  tendency  very  manifest  in  history,  of 
one  Aryan  community,  to  aggrandise  itself  by  the 
conquest  of  those  adjoining  it,  to  enlarge  the  area 
of  its  dominions  to  the  magnitude  of  an  extensive 
territorial  empire,  and  then  to  proceed  to  "triturate" 
(to  borrow  his  expressive  phrase)  the  various  local 
communities  into  a  consolidated  and  centralised 
nation.  The  Roman  Empire  was  the  first  great 
example  of  this  movement,  and  the  States  of  modern 
Europe  are  other  instances  of  it. 

From  these  generalisations  Prof.  Maine  draws  a 
remarkable  conclusion,  and,  in  my  view,  as  erroneous 
as  it  is  remarkable.  It  is  that  in  the  passage  of  these 
local  communities  into  an  extended  and  centralised 
empire  the  laws  distinctly  altered  their  character; 
that  while  before  the  passage  they  rested  upon  cus- 
tom, and  were  obeyed  almost  blindly  and  instinct- 
ively, seeming  to  be  parts  of  mere  order,  after  the 
passage  they  were  broken  up  and  replaced  by  rules 
directly  emanating  from  the  sovereign,  and  the 
power  behind  them  assumed  the  attitude  and  char- 
acter of  purely  coercive  Force;  that  the  theory  of 
Bentham  and  Austin,  while  wholly  inapplicable  to 
Oriental  conditions  and  to  the  primitive  social 
conditions  of  Europe,  did  represent  those  in  Europe 
which  came  into  existence  after  the  change;  that 
legislative  activity  has  rapidly  increased  and  is 
increasing,  and  that  eventually  Austin's  formula 


200  Law,  Its  Origin 

that  law  is  the  command  of  the  sovereign  will  be 
as  true  in  fact  as  it  is  elegant  in  theory.  I  must 
give  in  his  own  language  the  auspicious  future 
which  he  predicts  for  this  theory: 

"But,  if  the  Analytical  Jurists  failed  to  see  a  great  deal  which 
can  only  be  explained  by  the  help  of  history,  they  saw  a  great 
deal  which  even  in  our  day  is  imperfectly  seen  by  those  who,  so 
to  speak,  let  themselves  drift  with  history.  Sovereignty  and 
Law,  regarded  as  facts,  had  only  gradually  assumed  a  shape  in 
which  they  answered  to  the  conception  of  them  formed  by 
Hobbes,  Bentham,  and  Austin,  but  the  correspondence  really 
did  exist  by  their  time,  and  was  tending  constantly  to  be- 
come more  perfect.  They  were  thus  able  to  frame  a  juridical 
terminology  which  had  for  one  virtue  that  it  was  rigidly  con- 
sistent with  itself,  and  for  another  that,  if  it  did  not  completely 
express  facts,  the  qualifications  of  its  accuracy  were  never  seri- 
ous enough  to  deprive  it  of  value,  and  tended,  moreover,  to 
become  less  and  less  important  as  time  went  on.  No  concep- 
tion of  law  and  society  has  ever  removed  such  a  mass  of 
undoubted  delusion.  The  force  at  the  disposal  of  Sovereigns 
did  in  fact  act  largely  through  laws  as  understood  by  these 
Jurists,  but  it  acted  confusedly,  hesitatingly,  with  many  mis- 
takes and  vast  omissions.  They  for  the  first  time  saw  all 
that  it  was  capable  of  effecting,  if  it  was  applied  boldly  and 
consistently.  All  that  has  followed  is  a  testimony  to  their 
sagacity."  1 

Sagacious  indeed  must  those  minds  have  been — and 
in  a  miraculous  way — who,  seeking  to  describe  law 
as  it  was,  failed  only  because  they  accurately 
described  law  as  it  was  to  become,  and  rose  from 
the  ashes  of  scientific  failure  into  a  glory  of  prophecy 
of  which  they  had  not  dreamed! 

Where  does  Prof.  Maine  find  the  evidence  which 

1  Maine's  Early  History  of  Institutions,  pp.  396-397. 


Growth  and  Function  201 

convinces  him  that  the  doctrine  that  law  is  the 
command  of  the  sovereign,  erroneous  in  the  past 
to  the  point  of  absurdity  as  he  admits,  is  destined 
to  become  truth  in  the  future?  What  is  there  to 
reconcile  him  to  a  change  so  momentous?  It  is  in 
the  progressive  change  which  he  thinks  is  observable 
in  the  history  of  the  advance  of  all  Aryan  nations, 
as  they  pass  from  small  local  communities  into 
strong  centralised  States.  As  such  States  advance  in 
population,  wealth,  and  power  he  observes  a  corre- 
sponding activity  in  Legislation.  He  saw  the  classi- 
cal Roman  law  give  way  to  the  Pandects  and  the 
Code  of  Justinian,  and  he  saw  the  ancient  laws  of 
France  dissolved  by  legislative  enterprise  into  the 
Code  Napoleon.  He  says:  "The  capital  fact  in  the 
mechanism  of  the  modern  States  is  the  energy  of 
Legislatures."1  He  thought  he  saw  coming  down 
from  the  past  a  conflict  between  the  notion  of  Order 
and  the  notion  of  Force  in  the  law,  and  that  Force 
was  to  emerge  triumphant.  He  says: 

"  The  word  '  law  '  has  come  down  to  us  in  close  association  with 
two  notions,  the  notion  of  order  and  the  notion  of  force.  The 
association  is  of  considerable  antiquity  and  is  disclosed  by  a 
considerable  variety  of  languages,  and  the  problem  has  repeat- 
edly suggested  itself,  which  of  the  two  notions  thus  linked  to- 
gether is  entitled  to  precedence  over  the  other,  and  which  of 
them  is  first  in  point  of  mental  conception  ?  The  answer  be- 
fore the  Analytical  Jurists  wrote  would,  on  the  whole,  have 
been  that  '  law, '  before  all  things,  implied  order.  .  .  .  The 
Analytical  Jurists,  on  the  other  hand,  lay  down  unhesitatingly 
that  the  notion  of  force  has  priority  over  the  notion  of  order." 

>  Maine's  Early  History  of  Institutions,  p.  398.         *  Ibid.,  p.  371. 


202  Law,  Its  Origin 

And  the  "force"  thus  spoken  of  is  pure  arbitrary 
force,  that  described  by  Austin  as  belonging  to  the 
sovereign  who  has  the  power  of  doing  "exactly  as 
he  pleases." 

Prof.  Maine  does  not  offer  to  us  reasons  tending  to 
show  that  legislation  ought  to  supersede  unwritten 
law,  though  this  is  probably  his  view,  but  yields 
his  acceptance  of  Austin's  theory  for  the  reason  that 
he  thinks  that  it  is  now  in  fact  superseding  it,  and 
will  do  so  completely  in  the  future.  It  would  have 
been  gratifying  if  he  had  pointed  out  the  particular 
facts  evidencing  the  progress  of  this  momentous 
change,  beyond  the  brief  references  to  the  activity 
of  legislation  in  the  later  Roman  Empire  and  in  the 
modern  States  and  to  the  Justinian  and  Napoleonic 
Codes.  I  think  it  will  be  found  upon  a  weighing  of 
the  evidence  that  the  notion  that  legislation  is 
occupying  the  field  and  discharging  the  functions 
of  the  unwritten  law  is  quite  unfounded,  and  that  the 
great  change  taking  place,  according  to  Prof.  Maine, 
by  which  the  notion  of  Force  is  to  become  supreme 
over  Order,  is  quite  imaginary. 

In  the  first  place,  in  order  to  estimate  the  weight 
of  the  considerations  alluded  to  by  him,  it  is  to  no 
purpose  to  make  reference  to  the  general  fact  of 
legislative  activity  in  modern  times.  Is  that  activity 
employed  in  making  the  substantive  laws  regulating 
conduct — that  is,  in  asserting  jurisdiction  over  the 
field  hitherto  occupied  by  the  unwritten  law?  This 
is  the  true  question.  I  have  heretofore,  in  marking 
out  the  province  of  written  law  indicated  that  the 
directions  in  which  its  activity,  according  to  its 


Growth  and  Function  203 

essential  nature,  was  properly  displayed  was,  not  in 
overthrowing  or  displacing  the  unwritten  law,  not 
by  acting  in  hostility  to  it,  but  in  acknowledging 
the  supremacy  of  custom  and  becoming  its  faithful 
handmaid  and  servant,  and  supplementing  and  aiding 
it  by  doing  those  things  which  custom  could  not  do 
for  itself.  Now,  if  we  turn  to  see  in  what  the  activity 
of  legislation,  which  Prof.  Maine  calls  "the  capital 
fact  in  the  mechanism  of  modern  States,"  is  really 
displayed,  we  find  it  to  be  in  performing  the  function 
I  pointed  out  as  the  appropriate  province  of  legis- 
lation— the  political  organisation  of  the  State  in  all 
its  branches,  the  making  provision  for  the  election 
and  appointment  of  multitudes  of  officials,  for  the 
establishment  and  maintenance  of  schools,  poor- 
houses,  prisons,  and  other  public  works,  the  whole 
provision  for  criminal  law,  the  maintenance  of  a 
legislative  and  judicial  system,  provisions  for  the 
creation  and  control  of  corporations,  banks,  insurance 
companies,  for  supplying  details  necessary  to  secure 
certainty  in  the  operation  of  the  unwritten  law, 
such  as  fixing  days  of  grace,  prescribing  positive 
precautions  to  determine  responsibility  in  cases  of 
negligence,  conforming  the  unwritten  law  to  custom 
where  custom  had  outgrown  precedent,  and  in  at- 
tending to  the  vast  business  involved  in  carrying 
out  these  objects.  Taking  the  statute-books  of  any 
of  the  States  of  this  country  or  of  England,  we 
shall  find,  as  I  have  heretofore  observed,  that  nearly 
all  their  contents  consist  of  work  of  this  character, 
which  is  not  the  making  of  law  in  any  juristic  sense. 
That  part  which  does  really  deal  with  the  govern- 


204  Law,  Its  Origin 

ment  of  conduct  is,  so  far  as  it  is  valid  and  effective, 
so  small  that  it  may  well  be  neglected  in  any  inquiry 
concerning  the  main  factor  in  our  substantive  law. 
It  has  been  correctly  described  as  "a  mere  fringe 
upon  the  body  of  the  common  law." 

It  may  be  thought  at  first  sight  that  the  examples 
of  the  great  codifications  such  as  those  of  Rome, 
France,  Germany,  and  some  American  States,  are 
genuine  instances  of  the  assertion  of  the  supremacy 
of  legislation  over  unwritten  law.  I  reserve  the 
subject  of  codification  for  subsequent  treatment;  but 
I  may  remark  here  that  since  all  these  codifications 
are,  with  certain  exceptions  not  important  to  the 
present  question,  avowed  re-enactments  of  existing 
law,  they  do  not  evidence  any  assumption  of  its 
functions  but  rather  a  confession  that  all  that  legis- 
lation can  do  in  relation  to  it  is  to  acknowledge  and 
adopt  it.  What  is  law  without  legislation  cannot 
be  made  more  law  by  enactment. 

There  are  better  ways  of  ascertaining  whether 
legislation  has  during  the  period  of  its  modern 
activity  been  gaining  a  supremacy  over  the  law  of 
custom,  than  by  a  general  reference  to  the  fact  of 
such  activity.  There  have  been  many  attempts 
to  introduce  new  rules  abrogating  existing  customs 
or  inconsistent  with  them.  This  initiates  an  imme- 
diate conflict  and  the  result  of  it  furnishes  a  crucial 
test  by  which  we  may  determine  the  comparative 
force  of  legislation  and  of  the  unwritten  law  of 
custom.  I  purpose  giving  some  attention  to  this 
test  by  citing  instances  in  which  newly  enacted  law 
has  come  in  conflict  with  deep-seated  custom. 


Growth  and  Function  205 

These  instances  have  sometimes  arisen  from  the 
want  of  forethought  in  the  legislator,  in  not  fully 
perceiving  what  the  effect  of  an  enactment  would 
be,  and  sometimes  from  the  positive  determination 
to  change  existing  law.  The  original  Statute  of  Uses, 
if  enforced  according  to  its  terms,  would  have  nearly 
created  a  revolution  in  the  long-established  customs 
by  which  men  bestowed  their  property  for  the 
benefit  of  relatives  or  others;  but  the  courts  over- 
ruled the  language  of  Parliament  and  so  limited  the 
law  that  its  only  effect  upon  these  customs  was  to 
cause  the  introduction  of  two  or  three  additional 
words  in  a  conveyance.  The  Statute  of  Limitations 
would  have  prevented  the  redress  of  frauds  after 
the  lapse  of  a  certain  number  of  years,  but  the  courts, 
obeying  the  deep-seated  motives  in  the  minds  of 
men  created  by  custom,  did  not  hesitate,  in  case  of 
concealed  fraud,  to  disobey  its  injunction.  The 
British  Parliament,  in  obedience  to  a  notion  that  the 
practices  of  dealers  in  provisions  in  market-towns, 
called  engrossing,  forestalling,  and  regrating,  to  buy 
up  commodities  coming  to  market  and  resell  them 
at  retail,  tended  to  burdensome  enhancement  of 
prices,  began  as  early  as  1552  with  an  attempt  to 
break  up  such  practices  by  legislation,  and  between 
that  time  and  1706  enacted  some  prohibitory  stat- 
utes; but  this  came  in  contact  with  large  general 
customs  and  the  freedom  of  contract,  and  utterly 
failed  of  enforcement,  and  by  the  Act  of  1772  they 
were  all  repealed  in  penitential  shame.  The  multi- 
tude of  laws  prohibiting  the  sale  of  intoxicating 
drinks,  being  designed  to  restrict  their  use,  come  in 


2o6  Law,  Its  Origin 

contact  not  indeed  with  universal  custom,  but  with 
very  common  and  widespread  practice.  It  has  been 
found  impossible  to  enforce  these  except  in  small 
rural  communities,  and  but  partially  there. 

But  a  more  complete  illustration  of  the  actual 
limitations  of  the  so-called  sovereign  power,  and  the 
unwisdom  of  any  exercise  of  it  to  change  an  estab- 
lished custom,  is  to  be  found  in  the  events  which  are 
happening  in  the  days  now  flying.  Some  considera- 
tion of  these  events  is  very  pertinent  here,  and  justi- 
fies a  somewhat  detailed  notice.  There  is  no  custom 
more  universal  than  that  of  the  building  and  main- 
tenance of  the  ordinary  public  highways  at  the 
public  expense  and  the  using  of  them  by  every 
member  of  the  community  upon  absolutely  equal 
terms.  An  exception  has  been  indulged  in  the  case 
of  railroads,  the  construction  and  maintenance  of 
which  in  most  countries  have  been  committed  to  the 
hands  of  private  persons,  or  corporations,  operating 
under  franchises  granted  by  the  State.  They  still 
remain,  however,  public  highways,  and  the  equal  use 
of  them  on  equal  terms  by  the  public — an  equality 
possible  only  by  concerted  action  and  agreement 
among  the  naturally  competing  roads — has  been, 
for  the  most  part,  a  jealously  guarded  custom.  But 
no  vigilance  has  been  found  sufficient  to  prevent 
numerous  departures  from  it.  Powerful  interests, 
acting  sometimes  upon  the  cupidity  and  sometimes 
upon  the  fears  of  the  railway  companies,  have  been 
able  to  obtain  preferential  rates,  and  when  we 
consider  how  much  the  price  of  all  commodities 
depends  upon  the  cost  of  transportation,  it  is  not 


Growth  and  Function  207 

surprising  that  numerous  vast  private  fortunes 
should  have  been  secured  by  these  discriminating 
practices.  At  first,  they  were  scarcely  considered 
objectionable,  and  were,  indeed,  almost  regarded  as 
proofs  of  the  superior  enterprise  and  merit  of  those 
who  secured  the  benefit  of  them.  But  the  unerring 
wisdom  of  universal  custom  was  never  more  manifest 
than  here.  The  advantages  thus  gained  by  a  favoured 
few  enabled  them  to  crush  their  rivals  in  the  great 
fields  of  industry,  and  the  shocking  injustice  became 
more  and  more  manifest.  To  repress  and  abolish 
these  mischievous  departures  from  custom  was  a 
clear  occasion  for  the  employment  of  legislation,  and 
it  was  used  by  the  enactment  of  the  Interstate 
Commerce  law,  which  enjoined  the  preservation  of 
equality  in  rates  and  made  the  practice  of  discrimi- 
nation criminal.  But  it  was  not  found  easy  to  en- 
force the  law.  The  prohibition  was  easily  evaded 
by  resorting  to  rebates  and  other  devices,  and  the 
mischief  continued.  It  was  a  condition  of  things 
by  no  means  satisfactory  to  the  great  and  powerful 
railroad  companies.  Discrimination  was  the  un- 
willing resort  of  weak  companies  whose  necessities 
demanded  the  occasional  purchase  of  traffic  at  rates 
unreasonably  low,  or  whose  fears  of  the  withdrawal 
of  traffic  by  powerful  interests  compelled  them  to 
yield  to  unreasonable  demands.  But  if  one  line  of 
transportation  ventured  to  cut  a  rate  it  was  a  neces- 
sity for  all  the  rivals  to  follow.  The  force  of  this 
necessity  is  not  fully  comprehended  by  all ;  but  the 
truth  is  that  the  cutting  of  a  rate  by  a  railroad 
company,  however  secretly  done  and  incapable  of 


208  Law,  Its  Origin 

detection  and  punishment  at  the  hands  of  a  prose- 
cuting officer,  becomes  immediately  known  to  other 
companies  and  their  patrons,  for  the  traffic  will  at 
once  flow  to  the  road  of  the  rate-cutting  company. 
The  situation,  then,  is  this  for  the  manager  of  a 
railroad  company:  Unless  he  conforms  to  the  cut 
his  company  loses  the  traffic,  and  with  the  loss  of 
traffic  would  come  the  failure,  first,  to  pay  dividends, 
then  to  pay  interest  on  fixed  charges,  then  insolvency 
and  a  receiver.  Were  the  road  his  own  private 
property  his  plight  would  be  comparatively  endur- 
able, for  he  would  have  to  render  no  account  of  his 
failure;  but  what  answer  would  be  expected  from 
a  numerous  body  of  stockholders  on  reporting  to 
them  that  one  of  his  rivals  had  disobeyed  the  law 
and  the  common  agreement  by  cutting  rates,  and 
that,  as  he  could  not  conscientiously  follow  the 
example,  misfortune  was  the  necessary  result?  It 
would  be  likely  to  be  that,  if  he  entertained  such 
sentimental  views  of  the  transportation  business,  he 
ought  to  have  informed  the  stockholders  before  he 
accepted  his  office  and  took  their  property  and 
interests  in  charge.  The  mischiefs  arising  out  of  the 
practice  of  discrimination  had  become  so  unendurable 
that  the  competing  roads  combined  in  different  parts 
of  the  country,  to  put  an  end  to  it.  The  method 
employed  (I  speak  of  the  efforts  made  by  the  great 
lines  east  of  Chicago)  was  by  an  agreement  containing 
very  drastic  provisions  for  detecting  and  exposing  any 
discriminating  practice,  and  really  making  it  more 
dangerous  for  the  companies  to  depart  from  the 
agreement  than  to  keep  it.  It  contained  stipulations 


Growth  and  Function  209 

that  the  rates  should  be  reasonable  but  left  it 
eventually  optional  to  each  company  whether  to 
conform  to  the  agreed  rates  or  not,  exacting  com- 
pliance, however,  for  a  few  days,  so  that,  in  cases 
of  an  intended  rejection  of  the  rates,  notice  might 
be  given  to  the  other  companies  of  a  probable  com- 
petition. On  its  face  this  agreement  was  wise  and 
beneficial,  and  I  know  of  no  good  reason  for  dis- 
trusting the  actual  intention  of  its  authors,  but  it 
was  destined  to  challenge  hostility.  It  so  happened 
that,  several  years  before,  Congress  had  enacted  a 
law  designed,  on  its  face,  to  repress  contracts, 
conspiracies,  and  combinations  in  restraint  of  trade. 
The  spectacle  of  great  combinations  of  powerful 
interests,  commonly  called  "trusts"  had  excited 
public  interest  and  suspicion  and  a  clamour  that 
Congress  should  take  measures  to  prevent  them  or 
deprive  them  of  their  supposed  powers  for  mischief. 
As  usual,  each  of  the  rival  political  parties  sought 
to  turn  this  clamour  to  its  own  advantage  and 
claimed  to  be  the  best  guardian  of  the  public  interests 
against  the  encroachments  of  combined  wealth. 
The  party  in  power,  in  order  to  make  good  its  pre- 
tences, carried  the  above-mentioned  statute  through 
Congress.  Legislation  framed  to  secure  partisan 
advantage  is  dangerously  apt  to  be  fraught  with 
mischief;  but  in  this  instance  it  was  shaped  by 
prudent  and  cautious  hands.  It  declared  all  con- 
tracts, combinations,  and  conspiracies  in  restraint 
of  interstate  trade  or  commerce  to  be  illegal,  and 
subjected  them  to  penalties  of  fine  and  imprison- 
ment, and  authorised  in  a  vague  way  a  resort  for 
14 


2io  Law,  Its  Origin 

prevention  to  the  remedy  of  injunction.  Thus 
framed,  the  act  could  have  no  operation  except 
against  practices  properly  embraced  under  the  class 
of  ''contracts,  combinations,  and  conspiracies — in 
restraint  of  interstate  trade, ' '  and  by  the  long  and 
well-established  law,  these  restraints  had  been 
confined  to  such  as  were  injurious  to  trade;  and 
whether  any  particular  contract  or  combination  was 
really  injurious  was,  in  its  nature,  a  question  of 
economic  fact,  although  some  practices  had  been 
held  necessarily  injurious  to  trade,  and  therefore, 
as  a  matter  of  law,  to  fall  within  the  condemnation. 
The  undiscriminating  suspicion  of  the  public  was 
extended  to  all  powerful  combinations,  and  em- 
braced the  agreement  above  mentioned  between  the 
railroad  companies,  and  the  government,  whose 
policy  was  represented  by  the  anti-trust  legislation, 
could  not  maintain  its  attitude  of  assumed  hostility 
to  "Trusts"  without  attacking  the  agreement.  A 
bill  was  accordingly  filed  by  the  Attorney-General 
for  an  injunction  against  the  execution  of  the  agree- 
ment, which,  having  been  dismissed  by  a  Circuit 
Court  was  carried  by  appeal  to  the  Supreme  Court. 
Much  subsequent  confusion  and  difficulty  might 
have  been  avoided  had  the  court  deliberately  and 
with  no  preconceived  hostility  scrutinised  that  agree- 
ment with  the  view  of  determining  its  real  purpose, 
and  whether  its  probable  effect  would  be,  in  fact, 
injurious  to  commerce.  But  no  court,  however 
exalted,  is  uninfluenced  by  strong  popular  sentiment, 
and  this  high  tribunal  failed  to  keep  in  mind  the 
imperious  necessity  of  uniformity  in  the  rates  of 


Growth  and  Function  211 

railroad  transportation  over  parallel  lines,  and  con- 
sequently failed  to  perceive  the  merit  of  the  agree- 
ment. It  was  animated  by  an  underlying  suspicion 
that  the  effort  nominally  to  secure  uniform  rates 
was  really  designed  to  secure  high  rates,  and  it  seized 
upon  the  provision  which  involved  a  slight,  tem- 
porary, and  innocuous  restraint  upon  competition  as 
vitiating  the  whole  agreement,  thus  declaring  that 
any  agreement  containing  any  restraint  whatever 
upon  competition,  whatever  the  purpose  might  be, 
was  per  se  injurious  to  trade.  It  is  safe  to  say  that 
this  doctrine  was  without  precedent.  I  should  as  a 
lawyer,  especially  as  I  happened  to  be  of  counsel  for 
the  defeated  parties,  have  hesitated  to  indulge  in  any 
criticism  of  this  decision  pertinent  to  the  questions 
I  am  discussing  had  not  members  of  the  court  itself 
exercised  that  privilege  in  the  fullest  manner  and 
made  it  manifest,  I  think  it  safe  to  say,  that  the 
decision  will  not  be  followed  by  the  tribunal  which 
declared  it.  Inasmuch  as  the  decision  of  the  court 
was  founded  upon  an  interpretation  of  the  statute, 
it  must  be  taken  that  Congress  enacted  a  law  re- 
specting railway  companies  which  made  any  con- 
tract, combination,  or  conspiracy  containing  anv 
ingredient,  however  small,  in  restraint  of  competition 
illegal  and  a  crime  in  those  engaged  in  it;  and  con- 
sequently that  an  agreement  between  railroad  com- 
panies simply  designed  to  secure  uniformity  in 
reasonable  rates,  though  not  compulsory  upon  the 
parties  save  for  a  few  days,  was  a  crime !  Now,  as 
all  the  managers  of  all  the  great  railways  of  the 
country  were  parties  to  the  condemned  agreement, 


212  Law,  Its  Origin 

or  to  others  like  it,  express  or  implied,  it  was  brought 
to  light  that  some  hundreds  of  citizens  of  eminence 
had  been  violating  the  law  and  were  liable  to  fine 
and  imprisonment;  yet  no  criminal  prosecutions 
were  set  on  foot,  and  the  Attorney-General  seemed 
to  have  exercised  the  supreme  prerogative  of  pardon 
which  the  Constitution  reserves  to  the  chief  magis- 
trate. But  what  effect  has  the  decision  had  upon 
the  conduct  of  the  presidents,  directors,  and  man- 
agers of  the  railroad  companies?  None  whatever. 
They  have  indeed  abrogated  their  formal  written 
agreements,  but  they  still  confer  and  fix  uniform 
rates  by  concert — that  is,  they  are  in  the  daily  prac- 
tice of  forming  the  combinations  and  conspiracies 
which  the  law  condemns!  And  no  attempt  is  made 
to  bring  any  one  of  the  criminals  to  justice!  The 
artillery  of  the  Attorney-General's  office  is  as  silent 
as  if  every  gun  were  spiked.  It  was  easy  for  the 
Government  to  pretend  to  execute  the  law,  but 
when  it  found  out  what  executing  the  law  really 
involved  it  recoiled.  And  both  the  railroad  officers 
who  made,  and  make,  themselves  criminal,  and  the 
Government  that  fails  to  punish  them,  are  right. 
Both  yield  to  a  necessity  which  is  absolutely  im- 
perious. What  creates  the  wrong  is  the  statute; 
that  is,  with  the  interpretation  the  Supreme  Court 
has  placed  upon  it. 

This  illustration  gives  a  clear  notion  of  the  anoma- 
lous conditions  thrust  upon  society  when  the  written 
law  commands  one  thing  and  the  universal  custom 
another.  The  Government,  by  the  Anti-Trust  Act, 
as  interpreted  by  the  court,  has  declared  the  slightest 


Growth  and  Function  213 

degree  of  restraint  of  competition  in  traffic  arrange- 
ments concerted  between  parallel  railroad  lines  to  be 
illegal  and  criminal.  This  is  to  make  competition 
and  difference  in  rates  the  supreme  policy,  whereas 
universal  custom  requires  the  suppression  of  com- 
petition in  rates  and  the  preservation  of  uniformity ! 

The  result  of  this  conflict  is  not  open  to  doubt. 
The  Written  Law  is  victorious  upon  paper  and  power- 
less elsewhere.  The  Attorney-General  is  sensible  of 
the  feebleness  of  the  command  resting  upon  him 
to  enforce  a  law  the  enforcement  of  which  would 
send  a  hundred  of  the  most  eminent  citizens  to  jail 
and  throw  the  industry  of  the  country  into  con- 
fusion. Meanwhile,  the  interests  of  peace  and  order 
are  left  to  the  protection  of  the  nominal  criminals ! 
The  command  of  the  Sovereign  will  prove  impotent 
against  the  unyielding  force  of  custom.  Uniformity 
of  rates  in  railway  transportation,  upon  which  the 
safety  of  industrial  enterprises  so  entirely  depends, 
will  be  preserved.  It  will  be  preserved  to  a  certain 
extent  by  informal  consultation  and  concert  between 
competing  lines,  but  this  being  without  the  aid  of 
Government  enforcement  will  be  subject  to  frequent 
and  vexatious  violations.  The  most  effective  method 
will  be  the  acquisition  by  one  interest  of  the  control 
of  the  management  of  all  competing  lines  by  the 
acquisition  of  ownership,  or  of  the  control  of  owner- 
ship. One  gigantic  scheme  in  this  direction  has 
been  baffled  by  what  is  called  the  Northern  Securities 
decision,  made  in  an  action  instituted  by  the  Govern- 
ment to  enforce  the  provisions  of  the  same  Anti- 
Trust  Act.  But  other  efforts  will  be  made,  and 


214  Law,  Its  Origin 

should  they  not  prove  effective,  real  ownership  will  be 
acquired  by  one  or  a  few  individuals;  and  the  goal 
least  expected  by  those  who  have  insisted  upon  com- 
petitive and  discriminating  war  will  be  reached.  The 
practical  difficulties  of  another  resort,  that  is,  govern- 
ment ownership,  or  fixing  of  uniform  rates  by  gov- 
ernment, will  be  made  clear  when  all  others  shall 
have  proved  ineffectual.  The  deep-seated  and  far- 
reaching  custom  of  society  demanding  uniform  rates 
for  the  enjoyment  of  the  benefits  of  all  government 
franchises,  will  render  abortive  all  legislative  at- 
tempts which  stand  in  its  way. 

A  still  more  impressive  illustration  of  the  impo- 
tence of  written  law  when  brought  into  conflict 
with  custom  is  to  be  found  in  our  present  national 
history.  During  the  existence  of  slavery  in  the 
United  States,  the  negroes  in  the  slave  States  were 
regarded  and  treated  as  personal  property  absolutely 
destitute  of  every  civil  right,  and  the  notion  that  they 
could  participate  in  government  through  the  privi- 
lege of  voting  was  something  not  to  be  dreamed  of. 
This  condition  was  a  deep-seated  and  universal  cus- 
tom. The  abolition  of  slavery,  as  a  consequence  of 
the  civil  war,  converted  the  whole  race  at  a  stroke 
from  slaves  to  freemen — at  least  in  theory.  But 
they  were  freemen  in  little  more  than  name.  They 
were  not  indeed  any  longer  bought  and  sold  or 
claimed  as  property  by  their  former  masters,  but  the 
equality  which  belongs  to  freemen  was  everywhere 
denied  them,  and  various  devices  were  resorted 
to,  such  as  compulsory  apprenticeship,  by  which 
the  race  might  be  again  reduced  on  a  large  scale 


Growth  and  Function  215 

to  a  condition  of  practical  slavery.  The  General 
Government  then  proceeded  upon  the  notion  that 
if  the  privilege  of  the  ballot  were  extended  to 
the  freedmen  there  would  be  a  competition,  as  else- 
where under  free  suffrage,  for  their  votes,  and 
legislators  would  be  chosen  who  would  enact  laws  to 
enforce  their  rights.  But  the  expected  competition 
did  not  arise,  and  the  legislative  bodies  of  the  several 
Southern  States,  still  composed  of  white  men  only, 
proceeded  to  enact  laws  embodying  various  devices 
which  would,  and  did,  practically  nullify  the  gift  of 
the  ballot.  This  provoked  a  more  energetic  deter- 
mination by  the  General  Government  to  enforce  the 
right  of  the  freedmen  to  the  ballot  and  to  a  general 
equality  with  the  whites  before  the  law.  A  formi- 
dable mass  of  legislation  was  enacted  in  pursuance  of 
this  determination,  crowned  by  an  amendment  of  the 
Constitution  itself,  prohibiting  all  political  discrimina- 
tion of  every  form  between  citizens,  based  upon  the 
distinctions  of  colour  or  race.  The  legislative  de- 
vices by  which  the  white  men  had  been  enabled  to 
baffle  the  gift  of  political  equality  to  the  freedmen 
being  thus  rendered  ineffective,  they  took  the  only 
course  remaining  to  them  and  resorted  to  such  forms 
of  force  and  fraud  as  seemed  best  calculated  to  defeat 
the  Constitutional  and  Congressional  enactments. 
In  some  places  terror  was  produced  among  the  ne- 
groes by  a  general  and  noisy  display  of  firearms  pre- 
vious to  and  at  the  time  of  the  elections,  by  which  the 
negroes  were  intimidated  and  abstained  from  voting 
through  fear ;  in  others,  where  they  ventured  to  vote, 
the  ballot  was  fraudulently  tampered  with  so  as  to 


216  Law,  Its  Origin 

render  their  votes  ineffective.  To  such  an  extent 
had  this  almost  unconcealed  practice  of  force  and 
fraud  by  whole  communities  proceeded  as  to  alarm  the 
more  moral  elements  of  the  communities  guilty  of  it, 
and  excite  the  fear  that  all  distinctions  between  right 
and  wrong  would  become  obliterated  and  society 
itself  fall  into  anarchy.  Not  even  this  suggested  a 
withdrawal  of  their  opposition  to  the  Federal  legisla- 
tion, but  only  more  ingenious  contrivances  by  which 
they  might  avoid  the  grosser  practices  of  fraud  and 
violence  and  borrow  the  appearance  of  legality  in 
their  effort  to  deprive  the  black  race  of  political  equal- 
ity. To  this  end  constitutional  provisions  de- 
fining and  qualifying  the  right  of  suffrage  have  been 
contrived  and  adopted  in  some  States,  and  are  likely 
to  be  further  extended,  whereby,  without  open  dis- 
crimination, the  practical  exclusion  of  the  inferior 
race  from  political  power  is  secured.  The  validity  of 
these  constitutional  provisions  has  been  challenged 
at  the  bar  of  the  Supreme  Court,  and  it  is  not  easy  to 
see  how  they  can  escape  judicial  condemnation,  but 
thus  far  that  tribunal  has  avoided  the  questions  thus 
thrust  upon  it,  and  there  is  an  apparent  disposi- 
tion among  the  judges  to  escape  them  altogether. 
Should  this  disposition  prevail,  the  whole  of  the 
mighty  Federal  legislation  contrived  to  give  political 
equality  to  the  blacks  will  be  practically  annulled, 
leaving  behind,  however,  the  great  constitutions  of 
States,  which  should  be  models  of  openness,  directness, 
and  dignity,  deeply  marked  by  the  evidences  of  con- 
cealment and  deceit.  I  do  not  discuss  the  question 
whether  political  equality  ought  to  be  bestowed  upon 


Growth  and  Function  217 

a  race  to  which  social  equality  cannot  be  extended. 
Even  tyranny  may  be  beneficent  in  its  aims,  but 
never  in  its  results,  and  the  attempt  to  compel  a  com- 
munity of  men  to  do  right  by  legislative  command, 
when  they  do  not  think  it  to  be  right,  is  tyranny.  It 
is  Force  in  conflict  with  Order.  Force  will  not  gain 
its  end,  but  will  superinduce  a  mass  of  evil  and  suffer- 
ing which  was  the  last  thing  it  desired  or  expected. 

Many  other  instances  might  be  given  showing  the 
impotence  of  legislation  when  put  in  conflict  with 
custom,  and  refuting  the  notion  that  Law  is  now 
tending,  or  ever  will  tend,  to  become  the  creature  of 
Force  rather  than  of  Order.  Conduct  will  forever 
follow  the  great  governing  influences  proceeding  from 
the  constitution  of  man  and  the  environment  in 
which  he  is  placed.  It  will  change  as  these  influences 
change,  and  not  otherwise. 

In  nothing  is  human  vanity  more  largely  displayed 
than  in  the  love  of  a  theory.  The  simple  and  beauti- 
ful forms  in  which  consequences  develop  themselves 
when  a  sufficient  cause  is  assumed,  as  in  the  problems 
of  mathematics,  furnish  a  pleasure  which  the  mind 
desires  to  hold  in  its  grasp,  and  it  recoils  from  any 
scrutiny  into  facts  from  a  secret  fear  that  the  posses- 
sion will  be  endangered  and  turns  back  to  revel  in  the 
delights  of  the  theory.  Bentham  could  not  contem- 
plate without  indignation  the  fact  that  the  world  was 
governed  by  something  different  from  enacted  law. 
To  talk  about  conduct  following  its  own  laws,  and 
obeying  custom,  would  have  put  him  jfri  a  passion. 
To  remind  him  that  every  human  sogSety,  from  the 
beginning,  had  followed  custom,  would  have  probably 


2i8  Law,  Its  Origin 

drawn  the  answer  that  he  was  well  aware  of  the 
stupidity  of  mankind,  that  that  was  the  very  thing 
which  angered  him,  that  were  it  not  for  that  his  sys- 
tem would  have  been  adopted  long  before!  Austin 
was  somewhat  less  dogmatic  but  almost  equally  fond 
of  his  theory.  The  conception  of  a  sovereign  power 
in  the  State  which  could  "do  exactly  as  it  pleases" 
would  be  in  his  view  effective  in  reaching,  by  means 
of  legislation,  a  consistent  and  simple  system  of  law. 
He  did  not,  like  his  master,  Bentham,  reject  "judge- 
made  law"  with  abhorrence,  but  saw  in  it  an  ap- 
proach to  what  law  ought  to  be;  and  as  he  found  it 
enforced  by  the  sovereign  power  of  the  State,  he 
fell  into  the  error  of  thinking  that  this  sovereign 
power  had  really  created  what  it  thus  enforced.  Not 
stopping  to  inquire  whether  the  so-called  sovereign 
power  was  in  fact  sovereign,  he  chose  to  assume  it ; 
and  his  maxim  that  "what  the  sovereign  permits  he 
commands"  furnished  a  ready  demonstration  that 
all  law  actually  enforced  by  the  State  was  the  com- 
mand of  the  sovereign.  Prof.  Maine  was,  apparently, 
a  thorough  believer  in  Austin's  theories  when  he  be- 
gan his  inquiries.  He  soon  learned  that  when  the 
actual  facts  of  the  origin  of  law  are  studied  the  notion 
that  they  are  in  any  sense  the  creation  of  the  sover- 
eign must  be  relinquished.  Nowhere  in  the  actual 
world  could  a  sovereign  power  be  found  engaged  in  the 
creation  of  law  except  in  the  Roman  Empire  and  in 
the  great  modern  States,  and  even  in  those  States  the 
sovereign  was  only  beginning  to  be  the  author  of  law. 
He  caught,  however,  at  the  appearance  of  this  ten- 
dency and  predicted  its  increase  until  it  should  be- 


Growth  and  Function  219 

come  perfect,  and  then,  in  his  prophetic  view,  the 
Austinian  theory  would  stand  justified  and  estab- 
lished. Neither  Bentham  nor  Austin  sufficiently 
held  in  mind  that  the  province  of  science  was  rigidly 
confined  to  the  observation  and  orderly  arrangement 
of  facts,  or  that  it  was  anything  more  than  a  process 
of  reasoning  from  assumed  premises;  but  this  was  no 
particular  failing  in  them.  It  was  the  common  fault 
of  the  time  in  which  they  wrote.  How  great  the  real 
ignorance  of  true  science  then  was,  even  with  the 
most  highly  educated,  may  be  imagined  from  an  ex- 
pression of  Macaulay,  who,  eulogising  Bentham,  says 
that  he  found  "Jurisprudence  a  gibberish  and  left  it 
a  science  "!  Prof.  Maine  lived  in  the  full  blaze  of  the 
scientific  achievements  which  have  lighted  the  way 
for  all  seekers  after  the  truth.  He  knew  the  rigid 
pathway  by  following  which  those  successes  had  been 
won,  and  makes  the  apology  for  Austin  which  I  have 
mentioned,  saying  that  he  "more  than  once  reminds 
us  that,  though  his  principal  writings  are  not  more 
than  forty  years  old  [at  that  time],  he  wrote  before 
men's  ideas  were  leavened  to  the  present  depth  by  the 
sciences  of  experiment  and  observation."1  But 
Prof.  Maine  is  guilty  of  the  neglect  which  he  seeks  to 
excuse.  He  has  indeed  explored  the  early  institu- 
tions of  society  to  learn  the  forms  of  conduct  which 
they  exhibit  and  the  rules  which  actually  govern  the 
action  of  men,  but  this  is  a  part  only  of  the  territory 
of  fact  which  the  inquirer  must  explore  before  he  can 
reach  a  true  notion  of  the  origin  of  law.  It  is  only  the 
external  field  of  observation.  There  is  an  internal 

«  Maine's  Early  History  of  Institutions,  p.  373. 


220     Law:  Origin,  Growth,  and  Function 

field  quite  as  important,  into  which  Prof.  Maine 
never  sought  to  enter  any  more  than  Bentham  or 
Austin.  He  never  scrutinised  the  realm  of  con- 
sciousness to  learn  how  conduct  really  originates, 
and  what  is  its  cause  or  why  it  is  that  the  actions  of 
men  so  persistently  present  themselves  in  the  form  of 
custom,  and  why  departures  from  custom  are  so 
universally  condemned  and  punished.  No  adequate 
conception  of  law  can  be  reached  until  this  task  has 
been  faithfully  prosecuted. 


LECTURE     IX 

1NOW  turn  to  another  of  the  consequences  of  that 
view  of  the  nature  and  function  of  law  which  I 
have  adopted,  namely,  the  limitations  it  places  upon 
the  province  of  Legislation.  In  reaching  that  view  it 
became  necessary  for  me  to  treat  briefly  of  the  nature 
of  enacted  law  as  distinguished  from  that  which  is 
the  growth  of  custom  and  to  consider  at  some  length 
the  principal  uses  for  which  it  had  been  employed 
from  the  earliest  times,  and  I  have  been  obliged  to 
say  much  more  upon  the  same  topic  in  criticising  the 
theory  that  all  law  is  the  command  of  the  sovereign 
power;  but  the  importance  of  the  subject  demands 
that  I  should  present  iji  a  connected  view  the  real 
nature  of  legislation,  the  uses  for  which  it  may  be 
employed,  and  the  mischiefs  likely  to  flow  from  ill- 
advised  resorts  to  it — in  other  words,  that  I  should 
mark  out  the  Province  of  Legislation. 

The  popular  estimate  of  the  possibilities  for  good 
which  may  be  realised  through  the  enactment  of  law 
is,  in  my  opinion,  greatly  exaggerated.  Nothing 
is  more  attractive  to  the  benevolent  vanity  of  men 
than  the  notion  that  they  can  effect  great  improve- 
ments in  society  by  the  simple  process  of  forbidding 
all  wrong  conduct,  or  conduct  which  they  think  is 
wrong,  by  law,  and  of  enjoining  all  good  conduct  by 


222  Law,  Its  Origin 

the  same  means ;  as  if  men  could  not  find  out  how  to 
live  until  a  book  were  placed  in  the  hands  of  every 
individual,  in  which  the  things  to  be  done  and  those 
not  to  be  done  were  clearly  set  down.  The  man 
who,  by  his  writings,  has  done  most  to  cultivate  and 
propagate  this  notion  in  recent  times  is  Jeremy  Ben- 
tham,  of  whom  I  have  had  frequent  occasion  to  speak. 
Although  educated  for  the  bar.  he  never  engaged  in 
the  practice  of  his  profession.  He  was  a  student, 
and  Ethics,  particularly  what  might  be  called  the 
Ethics  of  Government,  was  the  main  subject  which 
engrossed  his  attention.  Inasmuch  as  Governments 
exist  for  the  sole  purpose  of  securing  happiness  to  the 
governed,  he  thought  it  their  duty  to  deliberately 
set  about  the  accomplishment  of  that  purpose  and 
to  ascertain  what  conduct  would  promote  and  what 
obstruct  happiness,  and  to  make  laws  in  writing  en- 
joining the  former  and  prohibiting  the  latter,  and 
insuring  a  fair  distribution  of  the  total  amount  of  the 
happiness  thus  achieved  among  the  governed  in  pro- 
portion to  their  obedience  to  the  law.  It  provoked 
the  rather  coarse,  but  expressive,  sarcasm  of  Carlyle, 
who,  as  you  know,  did  not  revel  in  pictures  of  human 
happiness,  or  greatly  love  the  common  herd,  that  it 
was  a  scheme  "for  the  distribution  of  an  attainable 
amount  of  Pig- wash  among  a  given  multitude  of  Pigs. ' ' 
I  do  not  adopt  this  characterisation  of  the  work  of 
a  great  and  philanthropic  man. 

This  theory  seems  on  its  face  very  simple.  Its 
complexities  and  difficulties  appear  only  when  we 
come  to  look  at  the  means  by  which  it  is  to  be  carried 
into  effect.  These  means  Bentham  carefully  elabo- 


Growth  and  Function  223 

rated  by  making  a  detailed  analysis  of  the  nature  of 
man,  and  a  careful  enumeration  and(  classification  of 
all  the  pleasures  and  pains  he  was  capable^of  experi- 
encing, of  all  his  various  passions  and  tendencies,  and 
of  the  multitude  of  varying  conditions  of  time  and 
place  affecting  his  conduct.  From  investigations 
like  these  he  gathered  the  principles  which  should 
guide  the  action  of  the  legislator  in  the  enactment  of 
Codes  of  law,  both  penal  and  civil.  The  statement 
and  explanation  of  these  principles,  with  which,  it  is 
to  be  borne  in  mind,  the  legislator  is  to  make  himself 
familiar,  occupies  a  space  which  would  amount  to 
thousands  of  ordinary  octavo  pages,  and  is  a  pro- 
found and  instructive  compendium,  presented  in  ac- 
curate and  precise,  though  not  attractive,  language. 
With  Codes  framed  upon  the  basis  of  these  principles 
he  would  supersede  all  existing  law  and  have  them 
contain  the  only  rules  of  conduct  which  judges  should 
be  permitted  to  enforce.  Here,  it  will  be  perceived, 
is  an  a  priori  scheme  for  the  creation  of  human  happi- 
ness through  the  instrumentality  of  Government. 
Man  is  not  to  work  out  his  own  happiness  by 
learning  from  the  teachings  of  experience  what 
is  right  and  what  is  wrong  and  acting  accord- 
ingly, but  by  studying  a  book;  and  Bentham  makes 
provision  for  beginning  the  instruction  of  children 
by  learning  the  book  by  heart,  and  repeating  it  as 
they  would  the  melodies  of  Mother  Goose.  He 
says: 

"  In  this  manner  before  sixteen  years  of  age,  without  hin- 
drance to  any  other  studies,  the  pupils  in  public  schools  would 
become  more  conversant  with  the  laws  of  their  country,  than 


224  Law,  Its  Origin 

those  lawyers  at  present  are,  whose  hair  has  grown  grey  in  the 
contentions  of  the  bar."  1 

This  scheme  assumes  that  the  legislator  can  know 
beforehand  from  the  nature  of  man  all  the  conduct 
he  can  by  possibility  exhibit,  determine,  and  enjoin 
what  is  conducive  to  the  greatest  happiness  of  the 
greatest  number,  and  forbid  what  is  destructive  of 
that  happiness. 

The  world- wide  difference  between  this  theory  of 
law  and  that  which  I  have  ventured  to  think  the 
true  one,  is  palpable  at  a  glance.  They  are,  indeed, 
opposites.  The  one  views  man  as  coming  into 
existence  with  faculties  which  enable  him  to  perceive 
the  consequences  of  his  own  conduct,  and  to  regulate 
it  accordingly;  so  that  when  he  finds  that  action  of  a 
certain  character  arouses  the  resentment,  anger,  and 
retaliation  of  others,  he  avoids  it,  learns  that  com- 
pliance with  custom  is  expected  both  by  himself  and 
others,  and  that  consequently  when  he  complies  with 
it  he  is  safe,  and  thus  makes  compliance  with  custom 
his  rule  of  action;  that  in  this  way  a  boundary  line  is 
marked  out  within  which  every  man  may  act  freely, 
but  beyond  which  he  must  not  go;  that  with  this 
freedom  of  action  he  is  left  to  work  out  his  own 
happiness  or  misery  by  his  own  efforts;  that  society 
enforces  this  conformity  to  custom  by  punishing 
departures  from  it,  and  to  this  end  constructs  the 
machinery  of  government  and  enacts  the  laws  which 
are  adapted  to  the  purpose,  the  whole  scheme  being 
the  result  of  an  Order  altogether  analagous  to  the 

'  Bentham,  Works,  vol.  i.f  p.  158. 


Growth  and  Function  225 

order  which  governs  the  movements  of  the  physical 
world.  The  other  is  a  scheme  by  which  society  is 
made  to  engage  in  the  business  of  finding  out  what 
conduct  on  the  part  of  its  members  will  secure  the 
greatest  amount  of  happiness  to  all,  and  then  com- 
pelling its  adoption  by  Force.  The  one  is  founded 
on  the  belief  that  no  part  of  the  universe  is  outside 
of  the  domain  of  existing  Law ;  that  when  the  human 
race  was  brought  into  the  world,  as  it  was  composed 
of  beings  who  were  to  act,  their  actions  would  fol- 
low an  already  existing  law,  and  not  present  a  scene 
of  anarchy.  The  other  assumes  that  the  race  was, 
so  to  speak,  dumped  upon  the  earth  without 
rule  or  compass,  unable  to  properly  govern  itself 
until  some  philosophic  moralist  arose  to  turn  his 
thoughts  inward  and  discover  that  the  chief  end  of 
man  was  happiness,  and  that  the  way  to  live  was  to 
form  a  government  which  should  appoint  a  commis- 
sion to  frame  a  body  of  rules  for  attaining  happiness, 
which  rules  the  government  would  by  force  compel 
all  men  to  obey.  The  one  view  of  the  function  of 
government  may  be  symbolised  as  that  of  a  police- 
man who  stands  by  and  does  nothing  as  long  as  no 
one  in  the  crowd  breaks  the  peace,  acting  on  the 
assumption  that  right  consists  in  minding  one's  own 
business,  and  wrong  in  trespassing  upon  others,  and 
that  every  one  knows  perfectly  well,  without  being 
told,  what  is  right  and  what  is  wrong;  the  other 
as  that  of  a  schoolmaster  with  the  whole  of  society 
for  his  pupils,  all  ignorant  how  to  act  until  they  had 
learned  what  the  end  of  action  was  and  the  way  to 
attain  it.  Bentham  had  a  talent  for  apt  illustration, 


226  Law,  Its  Origin 

which  he  frequently  employed  to  satirise  the  things 
he  disliked,  and  he  once  said,  speaking  of  the  un- 
written law,  that  law  was  taught  as  a  master  teaches 
his  dog,  by  waiting  until  he  did  something  wrong  and 
then  beating  him!  He  could  not  have  described  it 
more  accurately.  That  is  the  way  of  nature  through- 
out the  universe.  Why  should  not  the  master  wait 
until  the  dog  had  done  something  wrong?  Certainly 
he  should  not  have  punished  him  before.  But  per- 
haps Bentham  intended  that  the  master  beat  his  dog 
for  doing  something  the  animal  had  no  reason  to  think 
wrong.  But  this  is  not  true,  at  least  of  good  masters, 
such  alone  as  Bentham  can  be  supposed  to  have  had 
in  mind.  If  he  had  been  asked  how  he  knew  that 
the  dog  was  ignorant  of  wrongdoing,  I  cannot  imagine 
what  he  would  have  said.  Certainly  he  would  not 
have  intimated  that  a  code  of  dog  conduct  ought 
tojhave  been  prepared  in  some  language  known  to 
dogs  and  distributed  among  them.  The  way  in 
which  the  dog  had  learned  that  the  conduct  for  which 
he  was  punished  was  wrong  was  that  when  he  was  a 
puppy  he  was  petted,  caressed,  fed,  and  otherwise 
made  happy  when  he  obeyed  his  master,  and  when 
he  disobe)red  him,  at  first  gently  scolded,  then  more 
sternly,  afterwards  slightly  punished,  and  finally 
more  severely,  until  he  had  learned  to  associate 
happiness  with  obedience  and  misery  with  disobedi- 
ence, and  thus  well  knew  that  he  had  deserved  the 
blows  he  received.  The  same  is  the  case  with  the 
human  being,  child  and  man.  The  child  is  taught  as 
the  puppy  was.  Where  the  parental  relation  does 
not  exist  the  discipline  may  be  less  gentle  and  affec- 


Growth  and  Function  227 

tionate,  but  it  is  the  same  in  method.  In  the  infancy 
of  society,  when  one  man  encroached  upon  another 
he  met  sometimes  with  reproof,  sometimes  with 
retaliatory  resentment,  sometimes  with  violent  pun- 
ishment. It  thus  came  about  that  certain  things 
became  associated  with  the  prospect  of  suffering  and 
others  with  that  of  reward,  or,  at  least,  of  acquies- 
cence; and  as  this  instruction  is  one  which  goes  on 
with  every  man  every  moment  of  his  life,  it  is  per- 
fectly learned.  This  is  the  sort  of  knowledge  that 
every  man  has  of  the  law  resting  upon  custom. 
There  may  be  cases  where  the  legally  right  and  the 
legally  wrong  may  not  be  known,  but  how  few  they 
are  !  Every  convicted  criminal  knows  that  it  is  idle 
to  pretend  that  he  did  not  know  he  was  doing  wrong, 
for  no  one  would  believe  him.  Of  this  mode  of 
knowing  the  law  Bentham  apparently  had  no  know- 
ledge. He  really  seemed  to  think  that  the  enactment 
and  publication  of  the  law  was  not  only  the  best 
but  the  only  way  of  bringing  a  knowledge  of  it  to  the 
bulk  of  the  members  of  society. 

Of  course  that  knowledge  which  all  have  of  what 
things  are  right  and  what  wrong  in  the  unwritten 
law  does  not  often  include  a  knowledge  of  the  precise 
penal  consequences  which  may  follow  the  commission 
of  a  wrong,  nor  is  it  of  any  importance  that  it  should. 
It  is  enough  for  a  man  to  know  that  a  thing  is  right 
and  that  he  ought  to  do  it,  or  that  it  is  wrong  and  that 
he  ought  to  abstain  from  it.  The  notion  that  the 
whole  criminal  class  are  entitled  to  have  brought 
home  to  them  the  particular  amount  of  the  penalty 
which  the  law  attaches  to  particular  offenses, 


228  Law,  Its  Origin 

in  order  to  enable  them  to  weigh  more  exactly  the 
chances  they  are  contemplating,  is  wholly  irrational. 
The  absurdity — I  can  call  it  no  less — of  Bentham's 
view  is  that  the  true  method  of  making  law  known 
is  to  first  enact  it  in  writing  and  then  print  and  publish 
it.  There  is  no  objection  to  this,  but  its  efficiency 
is  based  upon  the  assumption  that  the  bulk  of  man- 
kind do  and  will  read  the  laws  that  are  so  published, 
whereas,  in  fact,  it  is  safe  to  say  that  scarcely  one 
man  in  a  thousand  does  this. 

But  the  consequences  of  misguided  legislation 
should  not  blind  us  to  its  beneficent  uses.  It  should 
make  us  only  the  more  solicitous  to  learn  what  its 
true  nature  is,  what  its  uses  are,  and  the  dangers 
against  which  caution  should  be  exercised  in  the 
employment  of  that  instrumentality ;  that  is  to  say, 
to  know  the  Province  of  Legislation  and  the  limita- 
tions of  its  exercise.  In  what  I  have  had  to  say 
heretofore  concerning  written  law,  it  has  been  mainly 
in  pursuance  of  my  general  purpose  to  explore  the 
whole  field  of  human  conduct  with  the  view  of 
discovering  all  the  causes  which  in  fact  restrain  and 
regulate  it;  and  so  far  three  things  have  appeared  to 
be  true  as  matters  of  fact  concerning  legislation: 

(1)  that  it  is  an  instrumentality  first  employed  at  a 
somewhat   advanced  state  of  social  progress   and 
after  society  has  come  to  assume  an  organised  form; 

(2)  that  the  purposes  for  which  it  was  at  first  and 
still  is  employed  were  political  rather  than  juristic, 
to  remove  political  evils,  perfect  the  organisation  of 
the  state  and  thus  to  aid  the  unwritten  law  of  custom 
and  make  it  more  effective,  rather  than  to  attempt 


Growth  and  Function  229 

to  furnish  a  substitute  for  it;  that  its  action,  there- 
fore, was  confined  to  the  province  of  Public  Law; 
(3)  that  the  only  considerable  exception  to  this  was 
the  instance  of  codification,  an  exception  more  ap- 
parent than  real,  the  cases  in  which  it  was  resorted  to 
being  mainly  where  several  states  or  provinces  having 
different  customs  had  become  united  under  one 
government,  and  the  different  customs  were  con- 
fused and  needed  unification. 

Since  legislation  has  for  the  period  of  three  thou- 
sand years  been  confined  to  the  province  of  public 
law,  as  above  indicated,  I  might  be  warranted  in 
drawing  the  conclusion  that  this  was  the  only  purpose 
to  which  it  was  adapted;  but  I  shall  be  abundantly 
justified  in  this  if,  after  considering  its  essential 
nature,  it  shall  appear  to  be  quite  unfitted,  and, 
indeed,  incapable  of  taking  a  principal  part  in  the 
regulation  of  the  conduct  of  men  in  their  private  re- 
lations with  each  other. 

I  have  remarked  that  Austin's  definition  of  Law 
was  a  tolerable  description  of  Legislation;  but  I 
think  it  would  be  a  better  definition  to  say  that  it 
is  simply  the  formal  written  expression  of  the  will  of 
the  Sovereign  State.  When  society  has  become  a 
conscious  organism  it  has  a  will,  and  the  act  of  ex- 
pressing this,  whether  by  the  decree  of  an  absolute 
monarch  or  by  the  voice  of  a  legislative  body,  is 
what  is  commonly  called  legislation.  All  such  ex- 
pressions are  called  laws,  but  all  of  them  are  not 
really  such  in  the  sense  in  which  I  have  regarded 
law.  As  I  have  already  pointed  out,  the  State  is  a 
great  corporation  having  many  things  to  do,  such  as 


230  Law,  Its  Origin' 

the  building  of  roads,  and  constructing  a  great  variety 
of  public  works,  appointing  officers  and  marking 
out  their  duties.  It  can  express  its  will  in  these  par- 
ticulars only  by  declaring  it  in  writing,  but  such 
declarations  are  not  in  the  strict  sense  laws,  because 
they  are  not  designed  to  regulate  directly  the  con- 
duct of  men  in  their  dealings  with  each  other.  Such 
acts  are  really  nothing  but  expressions  of  the  cor- 
porate will  of  the  State  in  the  transaction  of  its  par- 
ticular business. 

Legislation  does,  however,  in  a  large  number  of  in- 
stances express  the  will  of  the  State  in  relation  to 
conduct,  and  its  acts  of  this  nature  are  without 
impropriety  styled  laws.  For  instance  it  confers 
upon  individuals  the  power  of  acting  under  cor- 
porate forms  and  prescribes  numerous  rules  to  which 
such  action  must  conform,  thus  laying  the  foundation 
for  the  law  of  corporations.  It  imposes  upon  the 
people  generally  many  duties  such  as  the  payment 
of  taxes,  the  rendering  of  military  service,  etc.,  and 
its  acts  of  this  nature  affect  conduct,  but  incidentally 
only,  their  chief  object  being  to  create  efficient  in- 
strumentalities for  enforcing  and  aiding  the  funda- 
mental law  of  custom. 

Between  legislation,  even  when  thus  embracing  the 
commands  of  the  State  aimed  at  conduct,  and  the 
unwritten  law,  the  difference  is,  we  might  say,  world- 
wide. The  former  is  made  by  a  single  human  person, 
or  by  a  very  few  persons,  and  necessarily  exhibits  the 
imperfection  and  error  which  attaches  to  all  such 
works.  It  is  created  by  a  breath  of  the  human  will 
and  may  be  abrogated  by  another  breath .  The  latter 


Growth  and  Function  231 

is  self -existent,  eternal,  absolutely  right  and  just  for 
the  purposes  of  social  government,  irrepealable  and  un- 
changeable. It  may  be  justly  called  Divine ;  for,  being 
identical  with  custom  which  is  the  form  in  which 
human  nature  necessarily  develops  conduct,  it  can 
have  no  other  author  than  that  of  human  nature 
itself. 

These  fundamental  distinctions  between  the  un- 
written law  of  custom  and  the  commands  of  the 
sovereign  have  been  recognised  in  the  thought  of 
the  world  ever  since  legislation  began.  Universal 
custom  in  Athens  made  it  the  duty  of  relatives  to 
bury  the  bodies  of  the  dead ;  and  when  the  tyrant 
Creon  made  a  decree  forbidding,  under  penalty  of 
death,  the  burial  of  Polynices,  and  ordaining  that  he 
should  be  left  a  corpse  for  birds  and  dogs  to  eat,  a 
ghastly  sight  of  shame,  his  sister  Antigone  dared  to 
disobey  the  decree ;  and  when  asked  by  the  tyrant, 
' '  And  thou  didst  indeed  dare  to  transgress  that  law  ? ' ' 
answered:  "Yes,  for  it  was  not  Zeus  that  had  pub- 
lished that  edict;  not  such  are  the  laws  set  among  men 
by  the  justice  which  dwells  with  the  gods  below;  nor 
deemed  I  that  thy  decrees  were  of  such  force  that  a 
mortal  could  override  the  unwritten  and  unfailing 
statutes  of  Heaven.  For  their  life  is  not  of  to-day  or 
yesterday,  but  from  all  time,  and  no  man  knows 
when  they  were  first  put  forth."  And  the  voice 
of  human  feeling  as  expressed  in  dramatic  poetry 
was  the  voice  also  of  the  philosophic  jurists  of  an- 
tiquity. Cicero  in  his  dialogue  De  Legibus  makes  the 
interlocutor  thus  define  the  fundamental  unwritten 
law: 


232  Law,  Its  Origin 

MARCUS  :  Therefore  law  is  the  discrimination  of  things  just 
from  things  unjust ;  proceeding  in  obedience  to  that  original 
and  fundamental  nature  of  all  things  in  accordance  "with  which 
the  laws  of  men  are  framed  which  inflict  punishment  upon 
the  wicked,  and  defend  and  keep  guard  over  the  righteous. 

QUINTUS:  I  understand  it  very  clearly,  and  I  not  only 
think  that  no  other  enactment  should  be  regarded  as  law,  but 
should  not  even  be  so  called. 

MARCUS:  Would  you  not,  then,  call  the  Titian  and  Ap- 
puleian  enactments  laws? 

QUINTUS:  No,  not  even  the  Livian. 

MARCUS  :  And  you  are  right ;  especially  for  the  reason  that 
they  may  be  annulled  by  a  mere  line  of  the  Senate,  while 
that  law  the  force  of  which  I  have  explained  can  neither  be 
enacted  nor  repealed.1 

Again,  the  law  proceeding  from  legislation  consists 
of  a  multitude  of  distinct  propositions  or  commands 
having  no  necessary  connection  with  each  other,  and 
all  of  them  absolute  and  arbitrary.  No  reason  is 
assigned  for  them.  Stat  pro  ratione  voluntas.  A  cer- 
tain fact,  or  grouping  of  facts,  is  taken  and  erected 
into  an  ideal  class,  and  it  is  declared  that  whenever 
such  fact,  or  grouping  of  facts,  occurs  in  conduct 
certain  legal  consequences  will  inevitably  follow, 
whether  just  or  unjust.  Now  such  fact  or  grouping 
may,  for  aught  the  legislator  knows,  or  can  know,  be 
accompanied  by  some  other  fact  which  will  modify 
the  character  of  the  grouping  and  convert  what 
otherwise  would  be  just  into  injustice.  Nevertheless, 
the  law  must  have  its  course  unaffected  by  such  un- 
foreseen circumstance,  although  the  result  will  be  to 
defeat  the  intention  of  the  lawmaker  and  create 

1  Cicero,  De  Legibv.s,  lib.  ii.,  ch.  v,  vi. 


Growth  and  Function  233 

injustice  where  he  designed  to  prevent  it.  The  un- 
fitness  of  such  law  to  govern  the  unknown  conduct  of 
the  unknown  future  is  manifest. 

In  the  unwritten  law  of  Custom  such  anomalies 
cannot  occur,  for  in  that  law  there  are  no  absolute 
and  arbitrary  rules.  There  is,  indeed,  one  absolute 
rule,  but  it  is  riot  arbitrary.  It  is  that  custom  must  be 
obeyed.  This  is  not  the  expression  of  will,  but  the 
dictate  of  order.  Whether  any  particular  conduct 
does  or  does  not  conform  to  custom  can  be  told  only 
when  it  comes  for  the  first  time  to  be  displayed,  and, 
in  cases  of  dispute,  only  by  the  judges  who  are 
the  experts  appointed  by  society  for  that  purpose. 
The  vast  body  of  so-called  rules  of  law  found  in  our 
digests  and  treatises  and  mentioned  in  the  reports  of 
decided  cases  are  but  the  results,  and  logical  deduc- 
tions from  the  results,  of  the  cases  thus  decided, 
arranged  and  classified  with  regard  to  scientific  order. 
None  of  them  are  absolute.  They  are  all  provisional 
and  subject  to  modification. 

Having  pointed  out  the  true  measure  of  legislation 
and  its  wide  difference  from  the  unwritten  law,  I 
proceed  to  enumerate  the  principal  uses  which  it  is 
capable  of  serving  and  which  are  embraced  within 
what  may  be  called  its  province. 

First:  The  State  may,  by  an  expression  of  its  will, 
simply  do  something,  in  which  case  all  that  it  has 
directly  in  view  is  accomplished  by  such  expression: 
for  instance,  it  may  grant  the  public  franchise  of 
building  and  operating  a  railroad.  This  neither 
adds  to  nor  changes  existing  law.  and  is  not,  there- 
fore, in  a  narrow  and  precise  sense,  legislation, 


234  Law,  Its  Origin 

although  after  the  road  is  constructed  a  variety  of 
rights  and  duties  relating  to  it  will  arise  under  exist- 
ing law.  But  a  simple  grant  by  the  State  of  some- 
thing which  it  has  the  right  to  grant  differs  in  no 
respect  from  the  grant  by  a  private  person  of  some- 
thing he  has  a  right  to  grant. 

Second:  The  State  may  command  something  to  be 
done  by  others;  for  instance,  it  may  command  one 
of  its  officers  to  cause  a  prison,  a  courthouse,  or  other 
public  building  to  be  constructed.  This  does  not 
make  law  in  the  proper  sense  of  law.  It  affects  the 
conduct  of  the  person  it  commands,  but  in  no  other 
sense  than  that  in  which  the  conduct  of  a  soldier  is 
affected  by  the  command  of  his  superior  officer.  It 
is  a  particular,  not  a  general  command.  This 
species  of  legislation  is  often  employed  in  conjunction 
with  that  first  above  described,  as  when  an  act  is 
passed  creating  a  Banking  Department.  Certain 
offices  are  created,  which  is  a  thing  done;  besides  this, 
the  persons  appointed  to  fill  them  are  commanded  to 
perform  the  various  duties  assigned  to  them  in 
exercising  a  supervision  over  banking  institutions, 
and  the  bank  officers  are  required  to  make  regular 
reports  to  the  department,  containing  particular  items 
of  information  concerning  the  operation  and  condition 
of  the  corporations  under  their  management.  Legis- 
lative commands  thus  made,  requiring  special  things 
to  be  done,  are  part  of  the  machinery  of  government, 
but  a  part  very  different  from  that  relating  to  the  rules 
which  govern  the  ordinary  conduct  of  men  in  re- 
lation to  each  other.  It  is  properly  described  as 
public  law,  by  way  of  distinction  from  private  law. 


Growth  and  Function  235 

Third:  Another  form  in  which  the  State  may  ex- 
press its  will  is  that  of  commands  which  do  affect  the 
conduct  of  all  the  members  of  society,  as  where  a 
law  is  enacted  defining  and  punishing  a  crime,  a 
species  of  legislation  also  belonging  to  Public  Law; 
and  the  State  may  enter  the  province  of  strictly 
private  law  and  affect  the  conduct  of  its  members 
in  their  ordinary  relations  with  each  other,  as  where 
it  enacts  a  law  for  the  registry  of  deeds  and  declares 
that  a  registered  conveyance  shall  take  precedence 
over  one  prior  in  date  but  not  registered;  or  it  might 
go  further  and  define  a  contract,  and  declare  what 
contracts  should  be  valid  and  what  invalid. 

These  forms  in  which  the  will  of  the  State  may  be 
expressed  indicate  the  purposes  towards  which  its 
conscious  action  may  be  directed,  and  lead  to  the 
inquiry  whether  there  are  any,  and  what,  useful 
rules  of  wisdom  and  prudence  for  guiding  its  action. 
Manifestly  there  are  such;  but  before  endeavouring 
to  state  them  we  should  have  a  clear  understanding 
of  the  quality  of  the  power,  for  rules  very  largely 
depend  upon  that.  If  legislators,  whether  one  alone 
or  many  in  a  body,  possessed  perfect  intelligence  and 
wisdom,  the  purest  morality,  the  most  sincere  desire 
for  the  public  good,  and  were  without  selfish  interests 
and  ambitions,  there  would  be  little  need  for  laying 
down  rules  to  guide  their  action.  The  most  un- 
limited scope  might  safely  be  given  to  their  authority. 
A  moment's  reflection  informs  us  that  this  is  not  and 
cannot  be  the  fact,  although  some  reformers  who  are 
animated  by  the  passion  of  making  men  good  and 
happy  by  law  are  apt  to  think  so.  They  fall  into  the 


236  Law,  Its  Origin 

^rror  of  thinking  that  legislators  must  be  animated 
by  the  same  elevated  purposes  of  which  they  are 
conscious.  Bentham  could  never  have  believed  in 
his  theory  of  the  universal  government  of  men  by 
legislation,  based  upon  the  principle  of  securing  the 
greatest  happiness  to  the  greatest  number,  unless  he 
had  in  his  mind  the  notion  that  such  was  the  char- 
acter of  the  legislative  power.  Had  any  body  of  re- 
formers set  themselves  about  the  task  of  elaborating 
a  detailed  scheme  of  legislation  upon  his  theory,  the 
chances  are  that  he  would  have  been  foremost  in 
denouncing  it,  thus  confessing  that  his  theories  of 
legislation  were  unfounded,  unless  he,  or  some  one 
equally  enlightened  and  just,  were  made  the  legis- 
lator. When  we  look  at  the  sovereigns  of  history 
the  contrasts  we  find  to  the  conceptions  of  the  just 
legislator  are  so  broad  as  to  be  amusing.  We  may 
find  a  Nero  or  an  Antonine,  a  Peter  the  Great  or  a 
Merovingian  sluggard,  a  Louis  the  Fourth  or  a  Louis 
the  Fourteenth,  King  Stork  or  King  Log.  And  if 
we  turn  to  popular  forms  of  government  the  spec- 
tacle of  the  fact  when  compared  with  the  theory  is 
often  only  less  amusing.  The  members  of  the 
Legislatures  of  our  own  States  are  likely  to  be  not  the 
wisest,  but  the  smartest  only.  Instead  of  having  the 
public  good  at  heart  they  often  have  only  their  own 
personal  interests  or  ambitions,  or  they  have  been 
elected  through  the  patronage  and  money  of  some 
powerful  pecuniary  interest  and  are  faithful  alone 
to  that  influence.  Moreover,  the  pecuniary  value 
which  may  lie  in  some  special  legislation  is  often  so 
.great  that  powerful  private  interests  are  found  willing 


Growth  and  Function  237 

to  pay  prodigious  sums  to  secure  it,  and  corruption 
and  bribery  are  practised  to  a  frightful  extent;  the 
forces  of  corruption  become  organised  by  some 
skilful  leader,  expressively  called  a  boss,  who  acquires 
a  control  of  legislation  greater  than  that  enjoyed  by 
many  sovereigns.  It  may  be  asked  with  a  sigh  of 
despair  what  use  there  is  in  laying  down  rules  to 
guide  the  actions  of  such  legislators.  The  answer  is 
that  the  dark  picture  is  not  always  the  true  one,  and 
is  perhaps  rather  the  exception  than  the  rule.  The 
worst  of  men  are  not  always  bad;  indeed,  they  prefer 
right  conduct  and  will  follow  it  where  temptation  is 
not  too  powerfully  misleading.  Many — sometimes  a 
majority — are  right-minded,  and  many  measures  of 
public  importance  contain  in  them  no  element  fur- 
nishing temptation  to  desert  duty.  Besides  this, 
the  movement  for  important  public  measures  usually 
springs  up  among  public-spirited  men  outside  of 
legislative  halls,  and  is  communicated  and  pro- 
pagated by  means  of  the  press,  and  legislators  are 
powerfully  affected  by  the  loud  public  voice.  It  is 
highly  important  that  these  disinterested  influences 
should  be  instructed  in  the  rules  which  ought  to 
be  the  guide  in  legislation.  I  may  endeavour  to 
enumerate  the  more  important  of  these  rules. 

All  the  things  indicated  by  the  first  two  of  the 
forms  in  which  I  have  said  the  will  of  the  State 
may  be  expressed  are  obviously  within  the  province 
of  legislation.  Where  a  thing  can  be  done  only  by 
the  State  in  its  corporate  capacity  it  must  be  done 
under  an  act  expressing  the  corporate  will  that  it 
should  be  done,  as  the  making  of  a  grant  of  land 


238  Law,  Its  Origin 

owned  by  the  State,  or  the  granting  of  a  public 
franchise,  or  the  construction  of  public  works.  And 
the  whole  political  organisation  of  the  State  is  essen- 
tially of  this  character;  for,  although  in  the  early 
stages  of  social  organisation  some  progress  is  made 
by  mere  custom,  yet  eventually  the  entire  subject 
properly  falls  under  legislative  control,  and  where 
States  are  newly  organised,  as  most  of  the  American 
States,  the  whole  work  is  accomplished  by  legislation 
from  the  beginning.  This  field  of  legislation  is  of 
vast  extent,  embracing  the  organisation  of  the 
General  and  State  Governments  with  their  executive, 
legislative,  and  judicial  departments,  the  system  of 
taxation,  prisons,  schools,  courts,  the  dividing  of  the 
territory  into  counties,  towns,  etc.,  and  the  delegation 
to  such  divisions  of  the  powers  of  local  government, 
and  a  multitude  of  other  subjects  of  like  character, 
the  whole  composing  the  public  machinery  and 
equipment  of  the  State.  There  is  one  quite  distinct 
and  very  noticeable  branch  of  law,  one  which  is  in- 
volved in  the  daily  work  of  a  lawyer  more  than  any 
other,  which  belongs  to  this  category;  this  is  the  law 
of  judicial  procedure,  which  embraces  the  various 
sorts  of  actions  and  proceedings  which  may  be 
instituted  in  the  courts  to  enforce  private  or  public 
duties  and  the  public  discipline :  writs,  process,  trials, 
judgments,  executions,  etc.  Law  of  this  description, 
being  the  machinery  by  which  the  ordinary  law  is 
administered,  is  apt  to  be  regarded  as  part  of  that 
law;  but  it  has  no  direct  connection  with  conduct. 
Its  rules  are  not  rules  of  conduct,  but  are  incidental 
to  them  and  designed  to  make  them  effectual.  They 


Growth  and  Function  239 

are  sometimes,  and  quite  accurately,  distinguished 
from  the  law  with  which  they  are  so  closely  asso- 
ciated, by  putting  them  together  with  the  law  of 
evidence  in  a  special  class  called  adjective  law,  in 
contradistinction  to  the  rules  which  really  govern 
conduct,  which  are  appropriately  styled  substan- 
tive law.  The  law  of  procedure  cannot  be  created  by 
general  custom.  It  is  the  work  of  conscious  con- 
trivance, and  belongs  to  the  category  of  public 
machinery.  As  such  it  lies  in  the  field  of  legislation; 
but  the  actual  work  of  shaping  and  adapting  it 
should,  for  obvious  reasons,  not  be  undertaken  by 
the  Legislature  itself,  but  should  be  delegated  to  the 
body  best  capable  of  performing  it.  This  is  the 
judges  whose  duty  it  is  to  apply  it.  They  under- 
stand what  machinery  is  best  fitted  to  facilitate  their 
action  and  make  it  effective,  and,  the  working  of  it 
being  under  their  daily  observation,  they  are  able  to 
correct  and  reshape  it  as  occasion  may  require.  It 
should  be  established,  and  from  time  to  time  im- 
proved by  what  are  called  Rules  of  Court,  which  are 
really  legislation.  The  whole  of  this  machinery  of 
government  assumes  that  the  body  of  the  people 
are  living  under  a  system  of  customaiy  law  which 
governs  their  conduct  in  their  relations  with  each 
other.  It  does  not  purport  to  affect  that  law  other- 
wise than  by  providing  the  instrumentalities  and 
facilities  by  which  it  may  be  the  better  enjoyed  and 
enforced.  Of  course  in  all  this  body  of  contrivance, 
with  its  multitude  of  officers,  many  commands  are 
prescribed  concerning  the  duties  of  the  officers 
and  of  the  members  of  the  community  in  relation  to 


240     Law :  Origin,  Growth,  and  Function 

the  public  establishment,  and  a  vast  quantity  of 
legal  obligation  and,  therefore,  of  law  is  created;  but 
the  nature  of  it  is  widely  different  from  the  law  of 
custom  which  governs  the  private  transactions  of 
men. 


LECTURE    X 

AT  the  conclusion  of  the  last  lecture  I  spoke  of  the 
first  of  the  rules  that  ought  to  guide  in  legis- 
lation.    I  now  continue  the  enumeration. 

The  next  form  of  proper  legislative  activity  con- 
sists of  commands  directly  affecting  conduct.  I  mean 
the  Criminal  Law.  It  is  in  a  high  degree  important 
that  this,  and  its  true  place  in  the  body  of  law, 
should  be  well  understood,  inasmuch  as  many 
disorders  and  mischiefs  spring  up  out  of  mistaken 
notions  upon  the  subject.  And  in  the  first  place, 
there  should  be  a  clear  notion  of  what  a  crime  is  in 
the  eye  of  the  law.  Wrong  conduct,  socially  speak- 
ing, is  simply  a  departure  from  custom.  Custom 
being  the  only  test  of  right  and  wrong  in  the  law, 
there  can  be  nothing  which  in  the  view  of  the  law  is 
wrong  except  a  violation  of  custom.  But  all  wrong 
conduct  is  not  criminal — that  is,  it  is  not  properly 
punishable  by  law.  All  crimes  are  violations  of 
custom,  but  all  violations  of  custom  are  not  neces- 
sarily crimes.  There  are  many  departures  from 
custom  of  which  the  law  takes  no  notice,  or  should 
take  no  notice,  but  which  it  should  leave  to  the  juris- 
diction of  the  moral  forces  of  society.  The  line  of 
division  between  those  offences  which  are  properly 
punishable  by  law  and  those  the  repression  of  which 

241 

16 


242  Law,  Its  Origin 

is  wisely  left  to  moral  forces  is  the  line  of  probable 
violence.  The  function  of  the  criminal  law  is  to  pre- 
serve society  from  violence,  for  violence  is  war,  and 
threatens  the  existence  of  society.  It  may  be  asked 
why  all  social  offences  should  not  be  punished  by  some 
legal  penalty.  The  answer  is  that  legal  penalties 
should  be  inflicted  only  where  it  is  necessary.  The 
punishments  of  the  criminal  law  fall  with  very  unequal 
weight  upon  the  different  victims.  Little  notice  can 
be  taken  of  relative  ignorance,  guilty  intention, 
temptation,  and  provocation;  whereas  the  discipline 
of  the  moral  forces  is  tempered  by  a  regard  for  all 
these  circumstances,  and  is  likely  to  be  more  effective. 
In  the  next  place,  and  more  conclusively,  the  moment 
the  line  of  violent  wrong  is  passed  and  offences  of 
little  magnitude  are  subjected  to  legal  punishment, 
the  hazard  is  incurred  of  including  in  the  prohibition 
and  subjecting  to  punishment  conduct  which  very 
many,  perhaps  a  majority,  regard  as  right,  and  this 
is  tyranny,  an  abuse  of  law  more  fruitful  in  mischief 
than  many  crimes.  This  line  limiting  the  exercise 
of  criminal  prohibition  is  deeply  stamped  on  legal 
history.  I  have  already  pointed  out  the  fact  that 
before  the  institution  of  judicial  tribunals  the  only 
mode  of  punishing  and  repressing  crime  which  in- 
volved the  use  of  force  was  by  the  employment  of 
self-help,  the  infliction  by  private  hands  of  punish- 
ment upon  an  offender.  The  evils  of  this  condition 
were  the  cause  of  the  creation  of  such  tribunals,  the 
purpose  of  their  creation  being  not  to  supplant  the 
operation  of  the  moral  methods,  but  to  obviate 
the  necessity  of  a  resort  to  private  violence,  and  thus 


Growth  and  Function  243 

the  punishment  of  graver  crimes  was  transferred  to 
the  courts  and  became  regulated  by  law.  I  have 
referred  also  to  the  fact  that  any  breach  of  the  King's 
Peace,  which  originally  embraced  a  narrow  territory 
surrounding  his  person  or  possessions,  but  was  sub- 
sequently extended  over  the  whole  kingdom,  was 
regarded  as  a  crime,  and  that  nothing  was  punishable 
as  a  crime  which  did  not  imply  and  carry  with  it  such 
breach.  From  time  to  time  with  the  progress  of 
order  and  refinement,  additions  have  been  made  to 
the  list  of  criminal  offences,  but  the  rationale  by 
which  they  are  brought  into  that  character  is  the 
supposed  direct  tendency  of  the  offence  to  lead  to  a 
breach  of  the  peace;  and  to  this  day  any  offence, 
however  free  from  actual  violence  it  may  have  been, 
is  charged  in  the  indictment  to  have  been  committed 
by  "force  and  arms,"  and  "against  the  Peace  of 
our  Lord  the  King,"  or,  in  this  country,  "against 
the  Peace  of  the  People  of  the  State. ' '  There  is  no 
difference,  apparently,  between  slander  and  libel  ex- 
cept that  the  one  is  oral  defamation  while  the  other  is 
written,  and  yet  libel  is  an  indictable  offence  while 
slander  is  not;  and  the  reason  commonly  assigned 
for  the  distinction  is  that  a  written  defamation  is 
more  likely  to  lead  to  violence  and  a  breach  of  the 
peace.  Language  is  employed  in  the  ordinary  defini- 
tion of  crime  quite  significant  of  that  class  of  offences 
which  the  law  regards  as  calling  for  punishment. 
They  are  called  evils  in  themselves  (mala  in  se) — that 
is,  evils  of  which  no  account  need,  or  can,  be  given 
other  than  that  they  are  in  fact  wrong.  Now,  as 
there  is  no  test  of  right  and  wrong  in  the  law  save 


244  Law,  Its  Origin 

custom,  mala  in  se  are  simply  palpable  violations 
of  custom,  while  the  converse  expression,  mala  pro- 
hibita,  indicates  acts  which  the  law  makes  criminal 
without  regard  to  custom. 

This  is  all  I  need  say  concerning  the  original  and 
still  primary  class  of  criminal  offences;  but  the 
necessities  of  civilised,  industrial  society  in  modern 
times  have  required  an  extension  of  the  province  of 
penal  law  by  the  positive  enactment  of  numerous 
commands  and  prohibitions  not  to  be  found  in  the 
law  of  custom.  As  communities  become  more 
populous,  as  towns  and  cities  increase  in  number  and 
size,  and  as  industries  become  organised  in  estab- 
lishments of  great  magnitude,  the  appliances  of 
machinery  for  manufacturing,  locomotion,  and  trans- 
portation become  multiplied,  and  the  degree  of  co- 
operation required  among  the  members  of  society 
becomes  prodigiously  increased,  and  individuals 
touch  one  another  in  many  different  ways,  and  con- 
sequently the  duties  of  each  towards  others  become 
multiplied  and  increased.  Customs  of  precaution 
and  care  become  necessary  and  grow  in  importance. 
A  failure  by  a  single  person  to  observe  the  duties 
thus  prescribed  may  involve  great  injury  to  many 
others.  Under  such  circumstances  the  law  of  negli- 
gence becomes  of  great  importance  and  the  need  of 
special  rules  is  felt.  The  operation  of  custom  in 
fixing  such  rules  is  slow,  and  until  they  become 
established  all  that  a  court  can  do,  in  the  trial  of  a 
case  where  a  charge  is  made  that  one  person  has  been 
guilty  of  negligence  causing  injury  to  another,  is  to 
leave  it  to  a  jury  to  say  whether  the  accused  person 


Growth  and  Function  245 

has  used,  in  some  cases,  extreme,  and  in  others, 
ordinary,  care;  but  there  is  a  tendency  in  the  courts 
to  insist  more  and  more  upon  the  adoption  of  special 
positive  precautions  which  experience  has  shown  to 
be  necessary  or  useful  in  the  prevention  of  accidents. 
Legislation  performs  a  useful  office  here  by  seizing 
hold  of  these  tendencies  and  converting  growing 
customs  into  positive  rules.  The  numerous  laws 
specifying  positive  safeguards  which  railroads,  steam- 
boats, and  other  public  conveyances  and  manu- 
factories operated  by  machinery  must  supply  belong 
to  this  province.,  as  also  the  rules  of  navigation  de- 
signed to  prevent  collisions  at  sea. 

There  is  another  frequent  and  proper  occasion  for 
the  employment  of  penal  legislation  in  preventing 
evils  which  arise  from  the  competitive  struggles  of 
modern  life  in  industrial  pursuits.  The  employment 
of  child  labour  is  to  be  restricted,  tenement  building 
needs  regulation  in  order  to  preserve  health,  and  in 
these  and  other  like  directions  positive  injunctions 
and  prohibitions  must  be  made  and  enforced.  This 
greatly  increases  the  class  of  offences  known  as  mala 
prohibita. 

So  much  concerning  the  various  employments  of 
legislation  in  the  field  of  criminal  law,  but  here  the 
liability  to  cause  mischief,  in  the  attempt  to  remove 
it,  is  very  great  and  suggests  a  corresponding  degree 
of  prudence  and  caution.  So  far  as  offences  consist- 
ing of  those  clear  departures  from  custom  which  the 
law  denominates  mala  in  se  are  concerned,  the 
danger  is  not  great.  Such  offences  already  stand  in 
the  popular  mind  as  crimes  which  ought  to  be  pun- 


246  Law,  Its  Origin 

ished,  and  the  employment  of  regulated  force  should 
take  the  place  of  irregular  violence.  However  men 
may  differ  as  to  whether  it  is  good  or  bad  to  do  this 
thing  or  that,  all  are  agreed  that  violence  is  wrong  and 
must  be  prevented  and  the  common  complaint  is  that 
the  State  is  less  energetic  in  this  work  than  it  ought 
to  be.  The  principal  danger  lies  in  the  attempt 
often  made  to  convert  into  crimes  acts  regarded  by 
large  numbers,  perhaps  a  majority,  as  innocent — that 
is,  to  practise  what  is,  in  fact,  tyranny.  While  all 
are  ready  to  agree  that  tyranny  is  a  very  mischievous 
thing,  there  is  not  a  right  understanding  equally 
general  of  what  tyranny  is.  Some  think  that  tyranny 
is  a  fault  only  of  despots,  and  can  not  be  committed 
under  a  republican  form  of  government;  they  think 
that  the  maxim  that  the  majority  must  govern  justi- 
fies the  majority  in  governing  as  it  pleases,  and  re- 
quires the  minority  to  acquiesce  with  cheerfulness 
in  legislation  of  any  character,  as  if  what  is  called 
self-government  were  a  scheme  by  which  different 
parts  of  the  community  may  alternately  enjoy  the 
privilege  of  tyrannising  over  each  other.  The  princi- 
pal evils  of  legal  tyranny  arise  from  the  instrumen- 
tality which  it  employs,  which  is  always  force. 
What  is  called  the  tyranny  of  fashion,  or  custom 
(using  this  word  in  its  common  s.ense),  does  no  great 
harm.  No  one  is  compelled  to  submit  to  it,  and  the 
penalty  of  being  unpopular  is  not  ordinarily  very 
severe;  but  when  force  is  called  in  to  compel  men  to 
act  in  accordance  with  the  opinions  of  others  rather 
than  their  own,  the  worst  mischief  ensues.  There 
is  a  great  misapprehension  as  to  the  extent  of  these 


Growth  and  Function  247 

mischiefs  and  also  as  to  the  cause  of  them.  When  a 
law  is  made  declaring  conduct  widely  practised  and 
widely  regarded  as  innocent  to  be  a  crime,  the  evil 
consequences  which  arise  upon  attempts  to  enforce 
it  are  apt  to  be  viewed  as  the  consequences  of  the 
forbidden  practice,  and  not  of  the  attempt  to  sup- 
press it;  and  it  is  believed  that  the  true  method  of 
avoiding,  or  doing  away  with,  these  consequences  is 
to  press  the  efforts  at  enforcement  with  increased 
energy.  But  when  a  mistake  has  been  made,  its 
consequences  can  not  be  avoided  by  a  more  vigorous 
persistence  in  it.  The  best  means  of  inculcating 
caution  in  this  employment  of  criminal  legislation 
is  to  have  clearly  in  mind  its  evil  consequences. 
The  species  of  criminal  legislation  to  which  sumptuary 
laws  belong  furnishes  an  apt  illustration  of  them. 
Take,  for  instance,  the  case  of  laws  prohibiting  the 
manufacture  or  sale  of  intoxicating  drinks.  The 
evils  of  drunkenness  are  so  manifest  that  great 
numbers  of  excellent  people  are  impressed  with  a 
conviction  that  some  measures  must  be  taken  to 
repress  them.  The  first  efforts  in  this  direction  were 
a  resort  to  what  are  called  moral  methods.  The 
attempt  was  made  to  arouse  a  public  sentiment  so 
strong  as  to  prevent  men  from  indulgence,  and 
discourage  the  sale  of  the  mischievous  article;  but 
the  results  of  such  efforts  are  generally  too  slow 
and  gradual  to  satisfy  aroused  and  earnest  minds. 
Besides  the  desire  of  doing  good,  the  selfish  determi- 
nation is  formed  of  carrying  out  a  purpose,  and  the 
purpose  comes  to  seem  so  important  that  no  inquiry 
is  made  concerning  the  means  except  to  consider  what 


248  Law,  Its  Origin 

will  be  most  effective.  It  suits  the  judgment  of  some 
and  the  temper  of  others  to  convert  the  practices  they 
deem  so  mischievous  into  crimes,  and  they  think  that 
if  nothing  else  will  prevent  indulgence  in  them,  the 
fear  of  heavy  punishment  will  at  least  be  effective, 
and  indeed  many  think  that  the  force  of  law  is  so 
great  that  the  mere  enactment  of  a  prohibition  will 
accomplish  the  desired  end,  and  all  are  inclined  to 
believe  that  even  if  the  laws  are  ineffective  for  the 
purpose  for  which  they  were  enacted,  they  will  at 
least  do  no  harm.  But  men  forget  that  their  acts, 
whether  in  enacting  and  attempting  to  enforce 
written  laws,  or  of  whatever  other  nature,  are  sub- 
ject to  the  great  law  of  causality  and  will  draw  after 
them  their  inevitable  consequences.  The  law  when 
enacted  will  not  execute  itself.  It  requires  the 
active  interposition  of  man  to  put  it  in  force. 
Evidence  must  be  found  and  prosecutions  set  in  mo- 
tion, and  as  this  is  a  task  in  which  good  men  are 
commonly  found  to  be  unwilling,  or  too  indolent,  to 
voluntarily  engage,  others  must  be  sought  for  who 
will  undertake  it.  The  spy  and  informer  are  hired, 
but  their  testimony  is  open  to  much  impeachment, 
and  is  met  by  opposing  testimony  often  false  and 
perjured.  The  trials  become  scenes  of  perjury  and 
subornation  of  perjury,  and  juries  find  abundant 
excuses  for  rendering  verdicts  of  acquittal  or  per- 
sisting in  disagreements,  contrary  to  their  oaths. 
The  whole  machinery  of  enforcement  fails,  or,  if  it 
succeeds  at  all,  it  is  in  particular  places  only,  while 
in  others  the  law  is  violated  with  impunity.  At- 
tempts are  made  to  insure  a  more  general  and 


Growth  and  Function  249 

effective  execution  of  the  law  by  imposing  the  duty 
of  detection  upon  the  ordinary  policemen,  and  giving 
them  summary  powers.  This  enables  such  officers 
to  extend  indulgence  for  a  price,  and  makes  their 
places  positions  of  value  which  speedily  fall  into  the 
hands  of  those  who  will  not  scruple  to  sell  their 
indulgences,  and  bribery  and  corruption  on  a  vast 
scale  are  the  result.  The  necessity  felt  by  the 
violators  of  the  law  to  purchase  protection  carries  the 
struggle  for  the  control  of  the  police  establishment 
into  politics,  and  mischiefs  almost  endless  follow. 
An  especially  pernicious  effect  is  that  society  be- 
comes divided  between  the  friends  and  the  foes  of 
the  repressive  law,  and  the  opposing  parties  become 
animated  with  a  hostility  which  prevents  united 
action  for  purposes  considered  beneficial  by  both. 
Perhaps  the  worst  of  all  is  that  the  general  regard 
and  reverence  for  law  are  impaired,  a  consequence 
the  mischief  of  which  can  scarcely  be  estimated. 

If,  at  the  expense  of  all  these  evils,  the  reformation 
sought  by  the  law  were  really  and  fully  effected,  the 
benefit  would  not  be  worth  the  price  paid  for  it,  but 
it  generally  turns  out  in  the  end  that  the  legislation 
is  wholly  ineffective  and  that  the  condemned  prac- 
tices, through  successful  bribery  and  by  various 
devices,  are  carried  on  much  to  the  same  extent  as 
before  the  enactment  of  the  law. 

What  a  spectacle  is  thus  afforded  of  the  impotence 
of  man's  conscious  effort  to  overrule  the  silent  and 
irresistible  forces  of  nature!  The  object  the  law- 
maker seeks  to  gain  by  this  legislation  is  to  do  away 
with,  or  greatly  diminish,  the  indulgence  in  intoxi- 


250  Law,   Its  Origin 

eating  drinks,  for,  although  the  sale  only  is  pro- 
hibited, the  real  thing  sought  and  expected  is  the 
prevention  of  the  use.  He  wholly  fails  to  gain  the 
object  in  view;  but  objects  not  in  view,  and  by  no 
means  desired,  are  brought  about  on  the  largest 
scale:  vast  and  useless  expenditure,  perjury  and 
subornation  of  perjury,  violation  of  jurors'  oaths, 
corrupt  bribery  of  public  officers,  the  local  elections 
turned  into  a  scramble  for  the  possession  of  the 
offices  controlling  the  public  machinery  for  the 
punishment  of  offences  in  order  that  that  machinery 
may  be  bought  and  sold  for  a  price;  law  and  its 
administration  brought  into  public  contempt,  and 
many  men  otherwise  esteemed  as  good  citizens  made 
insensible  to  the  turpitude  of  perjury,  bribery,  and 
corruption;  animosity  created  between  different 
bodies  of  citizens,  rendering  them  incapable  of  acting 
together  for  confessedly  good  objects! 

The  questions  may  be  asked  almost  indignantly, 
whether  society  must  endure  the  open  maintenance 
of  places  where  men  are  tempted  to  ruin  themselves 
and  their  families  by  indulgence  in  drink  and  are 
led  into  the  commission  of  the  worst  of  crimes; 
whether  gambling  and  vice  must  be  permitted  to  go 
unrestrained;  whether  children  are  to  be  allowed  to 
grow  up  in  ignorance  and  idleness  and  become 
mischievous  members  of  society;  in  short,  whether 
society  must  content  itself  with  waiting  until 
mischievous  practices  ripen  into  manifest  crime 
before  it  enforces  its  discipline,  and  refrain  from  all 
attempts  to  prevent  the  operation  of  causes  known  to 
be  fruitful  in  the  crimes  it  must  eventually  punish? 


Growth  and  Function  251 

It  may  not  be  easy  to  give  answers  to  such  questions 
satisfactory  to  all,  and  the  tasks  of  legislation  are 
often  undoubtedly  difficult.  Any  detailed  con- 
sideration of  them  is  beyond  my  present  purpose, 
which  is  only  to  indicate  the  general  nature  and 
function  of  criminal  legislation  and  the  general  limits 
within  which  it  should  be  confined;  but  I  do  not 
hesitate  to  say  that  any  legislation  which  bears  the 
characteristics  of  tyranny,  as  I  have  defined  that 
term,  is  vicious  in  theory  and  has  never  yet  suc- 
ceeded, and  never  will  succeed,  in  gaming  its  avowed 
end,  or  in  having  any  other  than  an  injurious  effect; 
and  I  venture  to  add  that  if  the  zeal  and  labour 
which  have  been  employed  by  what  are  called  the 
better  classes  of  society  in  efforts  to  enact  and  en- 
force laws  repressive  of  liberty,  had  been  expended 
in  kindly  and  sympathetic  efforts  to  change  and 
elevate  the  thoughts  and  desires  of  those  less  for- 
tunate than  themselves,  a  benefit  would  have  been 
reaped  in  the  diminution  of  misery  and  crime  which 
compulsory  laws  could  never  accomplish.  Moral 
ends  can  never  be  gained  except  by  moral  means. 
All  the  advances  in  civilisation  and  morality  which 
society  has  thus  far  made  are  due  to  the  cultivation 
and  development  of  those  moral  sympathies  which 
find  their  activity  in  co-operation  and  mutual  aid. 
Crimes  must  be  punished,  and  with  requisite 
severity;  but  mistake  in  determining  what  con- 
stitutes crime  should  be  avoided.  We  must  obey 
the  laws  even  when  ill-advised,  and  must  therefore 
regard  as  crimes  what  they  declare  to  be  crimes;  but 
in  the  view  of  science,  conduct  can  not  be  made 


252  Law,  Its  Origin 

criminal  by  a  legislative  declaration.  In  the  true 
sense,  crimes  are  those  grave  departures  from  custom 
which  disappoint  expectation,  excite  resentment,  and 
produce  revenge,  and  directly  involve  society  in 
disorder  and  violence.  The  chief  function  and  first 
work  of  organised  and  conscious  society  was  to 
preserve  internal  peace  and  order  by  substituting  the 
regular  and  formal  punishment  of  such  offences  in 
the  place  of  private  chastisement  and  revenge. 
Murder,  robbery,  stealing,  house-breaking,  cheating, 
were  from  the  first,  and  are  still,  universally  regarded 
as  crimes  deserving  punishment,  and  even  admitted 
to  be  so  by  the  offenders  themselves.  They  are 
crimes  because  they  are  gross  and  palpable  de- 
partures from  custom  rendering  peaceful  society  im- 
possible; but  practices  which  by  their  nature  do  not 
directly  and  violently  disturb  society,  whatever  may 
be  their  ultimate  tendency  and  effect,  and  which  all 
engage  in  who  desire  to  do  so,  cannot  in  a  true  sense 
be  converted  into  crimes  by  a  legislative  declaration 
promoted  by  one  part  of  society  against  the  wishes 
of  another.  Crime,  like  law,  can  not  be  made,  but 
must  be  found.  Society  is  not  an  institution  created 
by  voluntary  action  for  mutual  improvement  and 
discipline,  but  is  a  great  fact  springing  from  the  nature 
of  man  as  a  social  animal.  It  existed  for  countless 
ages  before  it  acquired  a  conscious  organism,  and 
passed  through  many  successive  stages  of  progress 
in  accordance  with  natural  laws.  Its  nature  was  in 
no  respect  changed  when  man  came  to  assume  a 
conscious,  but  limited,  control  over  it,  and  the  suc- 
cess of  man's  administration  of  that  control  lies  in 


Growth  and  Function  253 

his  correct  perception  of  those  fundamental  laws 
which  it  must  necessarily  follow,  and  shaping  the 
exercise  of  his  limited  power  to  aid  and  not  to 
supersede  those  laws. 

The  illustration  I  have  taken  from  laws  designed  to 
prohibit  acts  which  custom  does  not  condemn  sug- 
gests, however,  a  form  of  legislation  not  open  to 
objection.  Those  features  of  the  use  of  intoxicating 
drinks  which  are  the  sources  of  evil,  such  as  drunken- 
ness in  public  places,  and  disorderly  resorts,  are 
condemned  by  custom  and  directly  lead  to  violence 
and  crime.  Laws  designed  to  suppress  these  prac- 
tices are  in  accordance  with  the  true  principles  of 
legislation.  Intoxication  in  public  may  therefore  be 
punished,  and  the  traffic  may  be  restricted  to  a  class 
of  persons  of  approved  responsibility.  If  the  laws 
of  this  character  we  now  have  do  not  accomplish  all 
that  may  be  fairly  expected  from  them,  the  fault  lies 
in  lack  of  proper  execution  arising  mainly  from  the 
negligence  and  indifference  of  citizens  themselves. 

Thus  much  concerning  the  proper  employment  of 
legislation  in  what  I  regard  as  its  special  province, 
that  of  Public  Law,  and  concerning  the  rules  of 
wisdom  and  prudence  which  should  be  observed  in 
contriving  and  shaping  it.  The  general  rule  of 
wisdom  which  embraces  all  these  precautions  is  this  : 
that  it  should  be  kept  constantly  in  mind  by  the 
legislator  that  the  function  of  the  law  resting  upon 
custom,  the  function  of  legislation  and  the  function, 
indeed,  of  all  Government  are  the  same,  namely,  to 
mark  out  the  sphere  in  which  the  individual  may 
freely  act  in  society  without  encroaching  upon  the 


254  Law,  Its  Origin 

like  freedom  in  others;  that  this  sphere  is  primarily 
marked  out  by  the  unconscious  operation  of  custom 
with  a  wisdom  far  beyond  that  of  the  wit  of  the 
wisest;  that  the  function  of  conscious  government, 
whether  in  the  form  of  legislation  or  otherwise,  is 
subsidiary  to  it,  and  that  all  legislation  should  observe 
this  subordination  and  never  attempt  to  subvert  or 
supersede  that  which  it  is  designed  to  aid. 

This  brings  me  to  the  consideration  of  the  remain- 
ing branch  of  legislative  activity  possible  under  the 
third  above  mentioned  form  of  expressing  the  public 
will,  namely,  that  in  which  it  acts  upon  the  Private 
Law.  Of  course  those  who  believe  with  Bentham 
that  nothing  is  entitled  to  the  name  of  law  except 
a  direct  command  of  the  sovereign  power,  and  that 
all  law  declared  and  enforced  by  the  mere  authority 
of  a  judge  is  a  fraudulent  usurpation  of  the  office 
of  the  Legislature,  must  reject  the  limitations  I  have 
laid  down  and  assert  that  the  whole  field  of  Private 
Law  belongs  to  the  province  of  legislation.  And  so 
also  must  those  reject  them  who,  like  Austin  and 
Maine,  while  not  regarding  the  action  of  the  judiciary 
as  a  usurpation,  and  indeed  while  imputing  it  to  the 
sovereign  by  saying  that  he  commands  it  because  he 
permits  it,  think  that  Order  is  yielding  to  Force, 
and  that  all  the  unwritten  Private  Law  is  destined 
to  become  the  direct  written  command  of  the 
sovereign.  According  to  these  jurists,  the  whole  law 
should  be  transformed  into  written  codes,  either  now 
or  at  no  distant  period.  While  I  must  regard  these 
opinions  as  refuted  by  what  I  have  already  said, 
there  is  a  form  of  codification  which  may,  even  in 


Growth  and  Function  255 

the  opinions  of  those  who  do  not  accept  the  doctrine 
that  law  is  a  command,  be  practicable  and  expedient, 
and  I  have  therefore  reserved  that  subject  for  a  later 
and  more  particular  discussion.  What  I  have  now 
to  say  relates  to  those  other  employments  of  legisla- 
tion in  Private  Law  which  are  consistent  with  my 
own  view  of  the  respective  provinces  of  Public  and 
Private  Law.  One  instance  in  which  legislation  may 
be  made  productive  of  advantage  is  in  removing 
uncertainty  and  confusion.  We  have  seen  that  no 
method  is  in  general  provided,  or  needed,  in  order  to 
make  custom  known.  The  term  itself  imports  that 
it  is  known  to  all.  Otherwise  it  would  not  be  custom. 
But  cases  of  doubt  do  arise.  Practices  which  are  in 
reality  departures  from  custom  may  become  so 
frequent  as  to  appear  to  be  customs,  whereas  they 
are  only  bad  practices.  These  are  cases  which  oc- 
casion law-suits.  Some  one  insists  that  a  certain 
act  is  sanctioned  by  custom ;  another  insists  that 
it  is  a  bad  practice  only.  An  expert — that  is,  a 
judge — is  appealed  to,  and  his  determination  estab- 
lishes what  is  custom.  But  another  judge  in  another 
locality  may  reach  a  different  conclusion,  and 
doubt  and  uncertainty  arise.  All  such  uncertainty, 
which  is  really  the  result  of  a  difference  of  opinion 
among  experts,  may  be  removed  by  an  appeal  to  a 
higher  tribunal  the  decisions  of  which  the  lower 
ones  are  bound  to  follow,  and  uncertainty  of  this 
sort  is  best  left  to  this  method  of  correction. 

But  there  is  another  species  of  uncertainty  in 
the  customary  law.  Sometimes  it  comes  from  the 
fact  that  different  but  neighbouring  communities 


256  Law,  Its  Origin 

belonging  to  the  same   State  were  of  different  ori- 
*  gin    and  history   and  had   different  customs  which 
were  adhered  to  in  the  different  localities  after  they 
had  become  united  under  one  nationality.     This  was 
the   condition   in   England   after  the  Anglo-Saxon 
conquest.      As    these    communities    become    more 
closely  united  and  blended  together  there  is  a  tend- 
ency towards  a    reduction  of  such    differences    to 
uniformity,    and   eventually   uniformity   would   be 
brought  about;  but  the  movement  would  be  slow, 
and  meanwhile  much  confusion  would  exist,   and 
consequent    uncertainty    in    the    determination    of 
rights.     The  approach  to  uniformity  may  be  usefully 
assisted  and  accelerated  by  legislation.     For  exam- 
ple, the  extent  of  the  authority  possessed  by  the 
owners    of   personal   property   to   bequeath    it   by 
testament  appears  to  have  been  at  one  time  a  matter 
of  much  doubt.     By  some  it  was  thought  that  the 
most  ancient  custom  common  to  the  whole  island 
of  Great  Britain  permitted  the  owner  to  bequeath 
one  third  only,  reserving  the  other  two  thirds  for 
the  wife  and  children.     Others  insisted  that  different 
customs  existed  among  the  different  principal  com- 
munities; but  there  was  a  general  inclination,  follow- 
ing  the   natural    desires    of    owners,    towards    the 
complete  authority  of  the  latter.     This  tendency 
was  recognised,  and  by  several  statutes  passed  in 
the  reigns  of  William  and  Mary,  William  III.,  and 
George  I.  the  rule  permitting  the  owner  to  bequeath 
the   whole   was   established   successively   in   York, 
Wales,  and    London,    bringing    the    last    of    those 
provinces  into  harmony  with  the  rest  of  England. 


Growth  and  Function  257 

This  tendency  in  countries  whose  populations  are 
made  up  of  people  once  living  under  separate 
governments,  and  having  different  customs  and 
laws,  towards  a  unification  of  law,  beginning  first 
spontaneously  and  then  taken  up  and  consummated 
by  legislation,  is  found  in  the  history  of  many 
nations,  and  was,  as  I  suppose,  the  main  original 
cause  of  the  Code  Napoleon  and  of  the  recent  codifica- 
tion in  the  German  Empire. 

Again,  in  the  ordinary  transactions  of  life,  in  con- 
sequence of  negligence,  ignorance,  or  fraud,  disputes 
arise  between  individuals  concerning  past  transac- 
tions with  each  other.  One  man  alleges  that  another 
owes  him  money  or  service,  in  consequence  of  a 
contract,  which  the  other  denies.  One  may  have 
forgotten  or  never  clearly  understood  what  had 
taken  place  between  them,  or  fraudulently  intended 
to  enforce  a  claim  in  his  own  favour  or  to  escape  an 
obligation.  Such  disputes  would  have  been  avoided 
if  the  parties  had  exercised  the  prudence  of  ex- 
pressing their  transaction  or  promise  in  writing, 
and  the  practice  became  common  of  employing 
writing  in  the  more  important  affairs.  A  court  could 
not,  however,  without  making  law,  declare  that 
this,  and  not  that,  contract  should  be  reduced  to 
writing.  The  legislation  commonly  known  as  the 
Statute  of  Frauds,1  by  which  certain  classes  of  con- 
tracts were  required  to  be  in  writing,  was  enacted  to 
supply  this  want. 

Again,  society  in  most  fully  civilised  nations  is  in 
a  condition  of  incessant  change,  which  means  that 

1  29  Charles  II. 
17 


258  Law,   Its  Origin 

customs  are  subject  to  incessant  change  and  that  the 
law  resting  upon  custom  must  change  in  accordance 
with  it.  New  arts;  new  industries,  new  discoveries 
are  continually  arising,  involving  changes  in  popula- 
tions, employments,  and  all  other  incidents  of  life. 
These  and  the  diffusion  of  education  create  new 
aspirations  and  hopes  which  endeavour  to  realise 
themselves.  In  early  society,  prior  to  the  organ- 
isation of  legal  tribunals,  the  final  and  complete 
establishment  of  a  change  in  custom  encountered  no 
other  obstacle  than  the  tendency  of  some  part  of 
the  community  to  hold  on  to  the  existing  custom. 
This  opposition,  however,  would  gradually  disappear, 
but  the  process  was  so  slow  as  to  be  nearly  imper- 
ceptible, and  consequently  to  be  free  from  great 
attending  inconvenience.  The  establishment  of 
courts,  however,  although  designed  to  remove  un- 
certainties and  confusion  in  customs,  and  although 
having  for  the  most  part  this  effect,  in  one  particular 
became  the  cause  of  those  very  evils.  In  order  that 
they  might  produce  certainty,  it  was  necessary  to 
treat  their  decisions  as  authorities  and  binding  de- 
clarations of  the  existing  law.  The  judges  could  not 
well  say  that  their  own  decisions  or  those  of  their 
predecessors  were  not  the  law,  and  this  obligation 
tended  to  make  the  process  of  change  difficult. 
There  would,  indeed,  begin  to  be  a  tendency  not  to 
follow  precedent  except  in  cases  precisely  similar, 
and  the  departures  would  extend  wider  and  wider 
until  the  precedent  had  become  so  undermined  that 
even  the  courts  would  disregard  it.  Thus  a  pro- 
tracted period  of  uncertainty  would  arise,  the 


Growth  and  Function  259 

abbreviation  of  which  would  be  a  great  advantage. 
In  such  cases  the  Legislature,  observing  the  tendency 
to  change  and  perceiving  that  in  the  end  it  would  be 
brought  about,  could  most  usefully  terminate  the 
existing  uncertainty  by  making  the  change  an  accom- 
plished fact.  The  existing  law  concerning  the 
rights  of  married  women  is  in  large  measure  the 
fruit  of  legislation  of  this  character.  The  ancient 
doctrine  that  during  coverture  the  person  and 
existence  of  the  wife  were  merged  in  her  husband, 
that  her  personal  property,  choses  in  action,  and  the 
income  of  her  realty  belonged  to  him,  was  firmly 
established  in  the  law  down  to  a  period  not  very 
distant  and  involved  many  harsh  consequences. 
Advancing  civilisation  and  refinement  many  years  ago 
began  to  exhibit  themselves  in  the  better  treatment 
of  women.  The  courts  of  equity,  always  the  first  to 
catch  the  growing  spirit  of  humanity  and  justice, 
favoured  this  progress  by  extending  a  larger  measure 
of  protection  to  them  than  was  allowed  in  courts 
of  law,  and  finally  the  Legislature,  foreseeing  the 
results  at  which  the  tendencies  of  society  were  aim- 
ing, by  numerous  statutory  enactments,  gave  married 
women  the  right  to  appeal  to  courts  of  law,  and 
preserved  for  them  after  marriage  substantially  the 
rights  of  unmarried  women. 

Another  occasion  for  legislative  action  such  as  I 
am  now  describing  is  found  where  incongruities 
have  arisen  in  consequence  of  unharmonious  action 
between  the  laws  as  enacted  and  customs  sanctioned 
as  lawful  by  the  courts.  The  celebrated  English 
Statute  of  Wills  is  illustrative  here.  There  was  in 


260  Law,  Its  Origin 

England,  at  least  after  the  Norman  conquest,  very 
little  power  to  dispose  directly  of  real  property  by 
will,  but  after  the  invention  of  the  doctrine  of  Uses 
the  expedient  was  resorted  to  of  a  conveyance  of  land 
to  one  person  for  the  use  of  such  other  persons  as 
the  grantor  might  name,  and  he  might  name  them 
in  his  will,  and  in  this  manner  a  gift  of  land  to  take 
effect  upon  the  death  of  the  owner  might  be  made. 
The  practice  was  recognised  by  the  courts  and 
devises  of  land  by  such  means  became  very  common. 
But  the  system  of  Uses  gave  rise  to  practices  of  a 
different  character  deemed  mischievous,  and  in  order 
to  put  an  end  to  these  Parliament  by  the  celebrated 
Statute  of  Uses  l  destroyed,  or  sought  to  destroy, 
Uses  themselves  by  directing  that  the  use  should 
be  converted  into  possession.  This  made,  or  seemed 
to  make,  the  contrivance  by  which  devises  of  land 
became  possible  ineffectual,  which  was  not  the  in- 
tention of  Parliament,  and  therefore  a  few  years 
later  the  Statute  of  Wills  was  enacted  by  which  full 
power  was  given  to  the  owners  of  real  property  to 
devise  it  directly  without  resort  to  any  contrivance. 
Another  occasion  for  legislation,  and  the  last  of 
which  I  shall  speak,  is  where  conflicts  arise  between 
different  bodies  or  classes  in  respect  to  their  rights 
against  each  other,  and  attempts  are  made  by  one  or 
the  other  class  to  establish  their  pretences  in  practice, 
and  resistance  is  met  with.  The  conflicts  so  menac- 
ing at  the  present  day  between  labourers  and  the 
employers  of  labour  are  of  this  character.  Pro- 
tracted as  they  are  through  long  periods,  practices 

1  27  Hen.  VIII.,  c.  10. 


Growth  and  Function  261 

grow  up  under  which  the  parties  become  organised, 
as  it  were,  in  hostile  camps,  and  the  public  peace 
becomes  endangered;  the  passions  become  inflamed 
and  whole  communities  are  divided  against  each 
other;  great  difficulty  arises  in  the  execution  of  the 
ordinary  law,  and  what  may  and  what  may  not  be 
lawfully  done  becomes  itself  clouded  with  doubt  and 
uncertainty.  It  would  be  extremely  difficult  at 
present  to  devise  any  law  the  execution  of  which 
would  compose  the  strife  now  going  on.  It  seems 
necessary  in  such  cases  that  the  conflict  should  con- 
tinue until,  by  the  attrition  between  the  parties,  some 
reconciling  custom  begins  to  take  form,  and  to  fore- 
shadow the  promise  of  peace.  Then  the  time  will 
have  arrived  for  wise  legislation  to  put  the  growing 
tendencies  into  enacted  law.  It  will  be  remembered 
that  in  an  earlier  lecture  I  pointed  out  that  the 
Laws  of  Solon  for  Athens  and  the  XII.  Tables  of  the 
Roman  Law  were  legislation  of  this  character.  The 
social  conditions  such  as  I  have  mentioned  are  ex- 
traordinary political  exigencies,  and  whenever  these 
arise  they  furnish  occasion  for  the  interposition  of 
the  legislative  power.  Inasmuch  as  in  these  internal 
conflicts  neither  party  will  yield  to  the  other  without 
a  trial  of  strength  they  would  proceed,  unless  arrested, 
to  internecine  war  in  which  the  vanquished  would 
be  obliged  to  submit.  The  office  of  legislation  is  to 
permit  this  war  to  be  carried  through  to  its  result, 
but  without  violence.  The  doctrine  that  the  major- 
ity must  rule  has  a  rightful  sway  here,  for  violence 
can  be  avoided  only  by  permitting  the  stronger 
party  to  prevail  without  resort  to  actual  force,  and 


262     Law:  Origin,  Growth,  and  Function 

the  stronger  party  is  made  manifest  by  the  control 
of  the  Legislature.  Such  legislation,  imposing,  as  it 
does,  the  thoughts  and  beliefs  of  one  part  of  society 
upon  another,  is  tyrannical  in  its  nature,  but  in  such 
cases,  as  violence  can  not  be  otherwise  avoided, 
tyranny  is  necessary. 


LECTURE  XI 

THE  subject  of  codification,  thus  far  reserved, 
belongs  under  the  general  head  of  legislation,  and 
should  be  treated  before  departing  from  that  topic. 
Codification  in  the  view  of  many  distinguished 
jurists,  both  in  the  past  and  at  the  present  time,  is 
the  method  by  which  the  improvement  and  per- 
fection of  the  body  of  our  law  is  to  be  sought.  This 
is  quite  inconsistent  with  the  theory  of  the  law  which 
I  have  endeavoured  to  support,  and  makes  it  in- 
cumbent on  me  that  I  should  state  the  grounds  and 
reasons  which  seem  to  me  to  show  it  to  be  erroneous. 
In  the  first  place,  it  is  important  that  we  should 
clearly  understand  what  the  advocates  of  codification 
mean  by  it.  It  will  be  remembered  that  I  have 
attached  much  importance  to  the  distinction  between 
Public  and  Private  Law,  assigning  to  the  former  all 
those  branches  of  law  in  which  society  as  a  whole  is 
directly  concerned,  and  which  embrace  the  methods 
and  instrumentalities  by  which  society  performs  its 
various  particular  functions,  and  to  the  latter  that 
body  of  rules  which  relate  particularly  to  the  trans- 
actions of  individuals  as  between  themselves;  and 
that  I  have  regarded  Public  Law  as  falling  within 
the  proper  province  of  legislation,  and  Private  Law 
as  being,  in  general,  irreducible  to  writing,  and 

263 


264  Law,  Its  Origin 

therefore  not  properly  the  subject  of  legislation.  This 
distinction  is  not  regarded  as  fundamental  by  the 
strictest  advocates  of  codification.  They  proceed 
upon  the  view  that  every  law  is  a  command,  and 
for  that  reason  is  most  properly  expressed  in  writing, 
and  consequently,  that  a  codification  embraces  and 
means  the  whole  body  of  the  law  reduced  to  a  con- 
cise, harmonious,  and  orderly  form  and  made  obli- 
gatory by  a  written  enactment.  In  their  view, 
indeed,  the  orderly  arrangement  of  the  law  requires 
a  disposition  under  leading  titles,  and  the  French 
Codification  and  that  proposed  by  the  late  Mr.  David 
Dudley  Field,  of  New  York,  embrace  a  scheme  of 
separate  codes,  one  for  each  of  the  principal  depart- 
ments of  Public  Law,  and  another  for  Private  Law. 
Now,  that  part  of  the  law  which,  in  accordance  with 
my  views,  is  necessarily,  or  properly,  expressed  in 
writing,  that  is,  Public  Law,  tends  to  become,  from 
the  operation  of  numerous  additions,  amendments, 
and  repeals,  complex,  voluminous,  confused,  and 
often  inconsistent,  and  requires  from  time  to  time 
to  be  revised,  reduced  in  volume,  and  simplified. 
This  work  is  frequently  performed,  and  our  numerous 
revisions  of  statutory  law  are  instances  of  it,  and  if 
the  term  codification  were  limited  to  such  a  work, 
I  should  make  no  objection  to  it.  But  what  is 
generally  intended  by  the  believers  in  codification 
is  the  statement  in  writing  not  only  of  Public  Law, 
but  of  all  the  rules  of  Private  Law  also,  so  that 
whether  we  wish  to  know  what  the  political  divisions 
of  a  State,  or  what  the  duties  of  public  officers  are, 
or  what  conduct  is  to  be  punished  as  criminal,  or 


Growth  and  Function  265 

what  contracts  are  to  be  enforced,  or,  in  general, 
what  rights  may  be  asserted  by  one  man  against 
another,  we  must  be  guided  by  the  statute-book. 

The  reason  upon  which  codification  as  thus  under- 
stood was  supported  by  its  original  and  illustrious 
champion,  Jeremy  Bentham,  was  derived  mainly 
from  his  belief  in  the  efficacy  of  legislation.  I  have 
heretofore  observed  that  in  his  view,  the  conduct 
most  conducive  to  general  happiness,  that  is,  of  the 
greatest  good  to  the  greatest  number,  could  be 
ascertained  beforehand  by  intelligent  men,  and 
could  therefore  be  stated  in  writing  and  enacted  as 
law,  and  he  seemed  to  think  that  if  it  were  once  so 
enacted  the  vast  change  for  the  better  which  it  would 
everywhere  produce  would  make  society  not  only 
satisfied,  but  delighted  with  it,  but  that  if  all  were 
not  satisfied  with  it  they  should  be  compelled  to 
accept  it  and  govern  their  conduct  accordingly.  He 
was  a  courageous  as  well  as  a  skilled  logician,  and 
never  flinched  from  any  true  deduction  from  his 
theory.  To  any  suggestion  that  upon  his  doctrine 
the  task  of  the  Judge  would  be  made  simply  that  of 
interpreting  words,  his  answer  would  be  that  this  was 
just  what  he  meant;  that  there  was  nothing  he  so 
much  detested  as  judge-made  law,  and  that  he  would 
abrogate  it,  root  and  branch,  by  a  declaration  that 
there  should  be  no  enforceable  rules  outside  of  the 
code.  To  any  suggestion  that  such  a  priori  rules 
must  often,  through  ignorance,  carelessness,  or 
negligence,  be  so  framed  as  not  to  be  applicable  to  the 
unknown  transactions  of  the  future  and  thus  occasion 
injustice  and  inconvenience,  he  would  say  that  such 


266  Law,  Its  Origin 

evils  would  be  far  less  than  those  arising  from  the 
uncertainty,  expense,  and  trouble  incident  to  un- 
written law,  and,  besides,  that  they  would  be  tem- 
porary only,  and  could  be  remedied  for  the  future  by 
legislative  amendments.  If  he  were  reminded  that 
his  proposal  seemed  contrary  to  the  experience  of 
mankind,  of  which  experience  the  common  law  was 
the  fruit,  he  would  have  answered  that  the  common 
law  was  the  fruit  of  a  fraudulent  usurpation  of 
legislative  power  by  the  Judges!  He  would  not 
hesitate  to  tear  down  the  majestic  fabric  which  the 
slow  processes  of  nature,  operating  through  ages, 
had  reared,  and  replace  it  with  the  wretched  in- 
vention of  some  committee  in  a  legislature. 

Lest  I  be  thought  guilty  of  exaggeration,  I  must 
borrow  from  his  own  language  contained  in  the 
remarkable  communications  which  he  seriously  ad- 
dressed to  the  People  of  the  United  States,  to  the 
Autocrat  of  all  the  Russias,  and  to  James  Madison, 
President  of  the  United  States,  imploring  them  to 
accept  and  to  endeavour  to  establish  in  their  re- 
spective nations  the  complete  codes  of  law  which 
he  would  undertake  to  construct  for  them.  In  his 
letter  first  above  mentioned,  that  addressed  to  the 
People  of  the  United  States,  he  said: 

Yes,  my  friends,  if  you  love  one  another — if  you  love  each 
one  of  you  his  own  security — shut  your  ports  against  our 
common  law,  as  you  would  shut  them  against  the  plague. 
Leave  us  to  be  ruled — us  who  love  to  be  thus  ruled — leave 
us  to  be  ruled  by  that  tissue  of  imposture ;  leave  us  to  be  ruled 

by  our  gang  of  self-appointed ;  by  our  lawyer-ridden, 

by  our  priest-ridden  ;  leave  us  to  be  ruled  by  those 

who  never  cease  to  call  upon  us  to  rally  around  our 


Growth  and  Function  267 

,  that  poisoned  and  poisonous by  the 

name  of  which  they  have  made  us  slaves. 

No:  never,  never  let  slip  out  of  your  mind  this  lesson — 
wheresoever  common  law  is  harboured,  security  is  excluded.1 

It  is  manifest  how  he  intended  the  blanks  to  be 
filled.  And  in  his  above  mentioned  letter  to  Pres- 
ident Madison  he  said: 

Yes,  Sir,  so  long  as  there  remains  any  the  smallest  scrap 
of  unwritten  law  unextirpated,  it  suffices  to  taint  with  its 
own  corruption, — its  own  inbred  and  incurable  corruption, — 
whatsoever  portion  of  statute  law  has  ever  been,  or  can  ever 
be,  applied  to  it. 2 

Yet  he  could  not  be  insensible  to  the  spectacle 
of  judicial  wisdom  which  characterised  the  action  of 
the  English  courts,  and  he  added  in  the  same  letter 
from  which  the  last  citation  is  taken: 

All  this  while,  incapable  as,  in  respect  of  its  form,  it  is  of 
serving,  in  any  tolerable  degree,  in  its  present  state,  in  the 
character  of  a  rule  of  action  and  guide  to  human  conduct, 
nothing  could  be  much  farther  from  the  truth,  than  if,  in 
speaking  of  the  matter  of  which  English  common  law  is 
composed,  a  man  were  to  represent  it  as  being  of  no  use. 
Confused,  indeterminate,  inadequate,  ill-adapted,  and  incon- 
sistent as,  to  a  vast  extent,  the  provision  or  no- pro  vision  would 
be  found  to  be,  that  has  been  made  by  it  for  the  various  cases 
that  have  happened  to  present  themselves  for  decision;  yet, 
in  the  character  of  a  repository  for  such  cases,  it  affords,  for 
the  manufactory  of  real  law,  a  stock  of  materials  which  is 
beyond  all  price.  Traverse  the  whole  continent  of  Europe, — 
ransack  all  the  libraries  belonging  to  the  jurisprudential 
systems  of  the  several  political  states, — add  the  contents 
all  together, — you  would  not  be  able  to  compose  a  collection 
of  cases  equal  in  variety,  in  amplitude,  in  clearness  of  state- 

tBentham's  Works,  vol.  iv.,  p.  504. 
*Ibid.,  p.  460. 


268  Law,  Its  Origin 

ment — in  a  word,  all  points  taken  together,  in  instructiveness 
— to  that  which  may  be  seen  to  be  afforded  by  the  collection 
of  English  Reports  of  adjudged,  cases,  on  adding  to  them  the 
abridgments  and  treatises,  by  which  a  sort  of  order,  such  as  it 
is,  has  been  given  to  their  contents. 

Yet  among  those  who  admired  Bentham  and 
accepted  his  doctrine  we  find  names  illustrious  in 
law  and  philosophy  such  as  Sir  Samuel  Romilly, 
John  Austin,  James  Mill,  John  Stuart  Mill,  and 
many  others.  It  seems  strange  that  such  powerful 
minds  should  not  have  perceived  the  error  of  a 
system  so  opposed  to  the  universal  practice  of  man- 
kind; but  it  should  be  remembered  that  in  Bentham's 
day  the  truth  of  the  supremacy  of  the  great  law  of 
causality  as  well  in  the  moral  as  in  the  physical 
world,  although  generally  admitted,  was  not  carried 
out  to  its  consequences.  The  law  of  Evolution  so 
dominating  in  its  influence  upon  recent  thought,  had 
not  been  stated.  Psychology,  Biology,  and  Soci- 
ology, now  assuming  the  attitude  of  sciences,  were 
wholly  undeveloped,  and  the  facts  with  which  those 
sciences  are  concerned  had  been  but  little  studied. 
The  truth  that  society,  like  every  other  phenomenon 
in  nature,  was  a  condition  resulting  from  the  operation 
of  causes  reaching  back  into  periods  infinitely  remote, 
was  not  understood.  Had  it  been  more  clearly  seen 
that  human  conduct,  the  great  feature  of  society, 
was  necessarily  customary  because  determined  by 
thought,  or  feeling,  which  being  determined  by 
original  constitution  and  external  environment,  both 
similar,  must  also  be  customary,  it  would  have  been 
seen  that  the  actual  rules  which  conduct  must  follow 


Growth  and  Function  269 

are  to  be  found  in  custom  and  cannot  be  formed  or 
changed  per  saltum  by  an  act  of  legislation;  and  that 
the  conscious  function  of  man  in  the  making  of  law 
was  the  by  no  means  humble  one  of  discovering 
the  tendencies  toward  which  custom  was  aiming  and 
assisting  in  their  operation. 

There  are  still  numerous  believers  in  the  theory 
of  codification.  They  cherish  an  admiration  for 
Bentham  and  his  doctrines.  They  accept  his  defini- 
tion of  law  as  a  command,  but,  less  courageous  than 
he,  they  recoil  before  the  reductio  ad  absurdum  which 
that  definition  really  involves.  Nor  do  they  have 
the  boldness  to  assert  that  it  is  possible  to  draw 
from  the  theory  of  Utility,  or  any  other  theory,  a 
body  of  a  priori  rules  which,  if  enacted  by  a  legis- 
lature, could  be  made  to  operate  with  effect  and 
advantage.  They  are  inclined  to  admit  that  the 
actual  body  of  our  present  law,  formed  by  the  con- 
tinuous declarations  of  judicial  tribunals,  and  learned 
by  the  study  of  reported  precedents,  is  an  altogether 
excellent  instrumentality,  in  general,  for  the  govern- 
ment of  conduct.  They  admit  that  in  an  ignorant 
and  rude  condition  of  society  no  satisfactory  code 
could  be  constructed,  but  they  insist  that  there  is  a 
point  in  the  life  of  every  civilised  State  at  which  all 
important  legal  principles  have  been  discovered  and 
are  really  known,  and  that  when  that  point  is  reached 
laws  can  and  ought  to  be  stated  in  writing,  and  that 
by  doing  this  a  prodigious  amount  of  existing  evil 
and  inconvenience  in  the  form  of  doubt  and  un- 
certainty in  the  administration  of  the  law,  and  labour 
and  expense  in  acquiring  a  knowledge  of  it,  will  be 


270  Law,  Its  Origin 

done  away  with.  That  I  may  fairly  represent  the 
views  of  this  class  of  believers  in  codification,  I 
gather  a  summary  of  them  from  the  Introduction 
to  the  Civil  Code,  reported  to  the  Legislature  of  the 
State  of  New  York  by  the  Commission  constituted 
under  the  Constitution  of  1848,  and  which  is  under- 
stood to  have  been  prepared  by  the  late  Mr.  David 
Dudley  Field.  The  propositions  embraced  in  this 
Report  are  substantially  these: 

First:  Whatever  is  clearly  known,  can  be  clearly 
stated  in  writing,  and  therefore,  all  that  is  clearly 
known  of  law  can  be  clearly  stated  in  writing; 

Second:  A  Code  therefore  is  practicable,  for  a 
Code  is  but  the  simple  and  orderly  statement  in 
writing  of  all  we  know  of  the  law; 

Third:  It  is  true  that  we  cannot  foresee  what  the 
law  would  be  for  new  cases,  that  is,  for  new  groupings 
of  fact  arising  in  the  future,  but  we  are  not  obliged 
to  lay  it  down  for  such  cases,  and  should  not  attempt 
to  lay  it  down  in  a  Code. 

Fourth:  The  benefits  which  would  be  derived  from 
a  codification  of  the  law  would  be  very  great  in  num- 
ber and  variety;  the  law  would  be  rendered  much 
more  clear  and  certain,  and  instead  of  necessitating 
a  search  through  a  library  of  books,  could  be  found 
in  a  single  volume,  and  the  ordinary  layman  could 
obtain  that  knowledge  of  its  rules  to  which  every 
one  is  entitled  who  is  bound  by  them. 

This  reasoning,  if  such  it  may  be  called,  contains 
nearly  every  form  of  error.  The  first  proposition  is 
a  mere  truism.  Who  has  ever  doubted  the  possi- 
bility or  expediency  of  reducing  our  knowledge  of 


Growth  and  Function  271 

the  law,  as  of  everything  else,  to  writing?  It  com- 
pletely justifies,  were  justification  needed,  the  very 
thing  we  have  been  doing  ever  since  law  came  to  be 
thought  of,  by  our  digests  and  treatises  which  are 
reductions  of  all  we  know  of  the  law  to  writing, 
but  it  justifies  nothing  more.  The  second  proposi- 
tion would  be  true  if  stating  law  in  writing  and 
enacting  law  in  writing  were  the  same  thing,  but 
things  more  different  from  each  other  could  scarcely 
be  imagined.  Stating  law  is  the  scientific  work  of 
putting  into  orderly  form  those  customary  rules  of 
conduct  which  men  in  society  have  come  to  observe, 
and  requires  scientific  knowledge  in  any  one  under- 
taking the  task.  Enacting  law  is  the  giving  of  a 
command  such  as  a  superior  gives  to  an  inferior,  and 
does  not  absolutely  require  any  knowledge  at  all 
in  him  who  gives  it,  and  such  commands  are  in  fact 
often  given  by  those  who  have  no,  or  little,  know- 
ledge or  whose  knowledge  is  of  a  kind  not  at 
all  desirable.  Stating  a  rule  of  the  common  un- 
written law  is  putting  into  words  a  rule  by  which 
all  conduct  of  the  kind  described  may,  so  far  as 
the  past  enables  us  to  determine,  be  governed  con- 
sistently with  the  sense  of  justice,  but  which 
future  experience  may  require  to  be  restricted, 
amended,  or  enlarged.  Enacting  a  rule  of  the  com- 
mon law  is  making  an  absolute  rule  by  which  all  such 
conduct  must  be  governed,  regardless  of  the  sense 
of  justice.  I  may  thus  illustrate  the  difference: — 
when  the  rule  was  first  declared  that  a  contract 
insuring  a  ship  was  not  valid  unless  the  assured,  in 
applying  for  the  policy,  had  disclosed  all  knowledge 


272  Law,  Its  Origin 

he  possessed,  material  to  the  risk,  it  amounted  to  this 
only — that  in  cases  like  the  one  decided,  such  disclosure 
was  necessary;  that  is,  that  under  certain  known 
conditions,  disclosure  was  requisite.  The  decision 
carried  our  knowledge  thus  far  and  no  farther,  and 
if  the  law  thus  decided  were  to  be  precisely  stated, 
the  statement  would  be  that  under  the  circumstances 
of  the  given  case  a  disclosure  by  the  assured  of 
knowledge  material  to  the  risk  must  be  made.  Now, 
if  we  were  to  enact  the  law  which  had  thus  been 
made  known  and  confine  the  enactment  strictly  to 
our  knowledge,  the  written  rule  would  correspond 
exactly  to  the  judicial  declaration  and  be,  that  under 
such  circumstances  as  the  given  case  presented  dis- 
closure of  knowledge  was  requisite.  It  is  quite 
obvious  that  such  an  enactment  alone  would  con- 
form to  the  codification  described  in  the  proposition 
we  are  dealing  with.  It  would  be  codifying  the  law 
so  far  as  it  was  known  to  us;  but  while  it  is  all  that 
the  defence  of  codification  which  I  am  considering 
professes  to  demand,  it  is  not  what  it  really  demands. 
It  would  really  enact  unconditionally  that  the 
applicant  for  marine  insurance  must  disclose  what- 
ever knowledge  he  has  material  to  the  risk.  Such 
an  enacted  rule  would  govern  cases  not  only  similar 
to  that  in  which  the  decision  was  made,  that  is,  cases 
of  a  certain  known  character,  but  all  cases  of  what- 
ever character,  whether  known  or  unknown.  The 
difference  will  appear  if  we  suppose  a  case  to  arise 
after  the  enactment,  in  which  an  action  is  brought  on 
a  marine  policy  and  it  appears  that  the  assured  had, 
at  the  time  of  applying  for  it,  knowledge  material 


Growth  and  Function  273 

to  the  risk  which  he  did  not  disclose,  but  it  also 
appears  that  the  underwriter,  at  the  time,  possessed 
the  same  knowledge.  Common  sense  and  reason  tell 
us  that  in  such  a  case  the  rule  requiring  disclosure 
has  no  just  application;  common  sense  and  reason 
no  longer  govern  the  case.  A  rule  has  been  enacted 
in  writing  requiring  disclosure  and  the  policy  must 
be  declared  void  on  account  of  concealment. 
Codification,  therefore,  however  limited  or  disguised, 
cannot,  if  it  is  made  to  have  any  effect  at  all,  be 
confined  to  what  is  known  of  the  law.  Instead  of 
declaring  rules  applicable  only  to  known  cases,  and 
those  like  them,  it  declares  rules  applicable  to  all 
cases,  known  or  unknown,  described  in  the  law. 
Mr.  Field  in  the  Introduction  above  mentioned, 
denies  this  :  He  says : 

"  This  Code  (his  proposed  Civil  Code)  is  undoubtedly  the 
most  important  and  difficult  of  all ;  and  of  this  it  is  true  that 
it  cannot  provide  for  all  possible  cases  which  the  future  may 
disclose.  It  does  not  profess  to  provide  for  them.  All  that 
it  professes  is  to  give  the  general  rules  upon  the  subjects  to 
which  it  relates  which  are  now  known  and  recognised." 

But  Mr.  Field,  if  he  was  fully  aware  of  what  he  was 
saying,  could  scarcely  have  been  sincere.  Where,  I 
beg  to  inquire,  is  any  such  profession  as  above  men- 
tioned set  forth  in  his  code,  or  in  any  proposed 
codification?  If  that  be  what  he  really  intended  by 
codification,  he  certainly  could  not  have  objected  to 
have  the  intention  clearly  expressed.  He  could  not 
have  objected  to  begin  it  with  an  article  framed  in 
his  own  language  as  follows:  "This  code  is  intended 
to  give  the  general  rules  on  the  subjects  to  which  it 

18 


274  Law,  Its  Origin 

relates  which  are  now  known  and  recognised."  But 
as  this  would  have  utterly  destroyed  his  code,  qua 
code,  by  converting  it  into  a  ridiculous  digest,  he 
either  did  not  mean  that  his  code  should  have  the 
limited  operation  he  asserts  for  it,  or  he  intended 
to  conceal  his  meaning  while  he  was  urging  its 
adoption.  This  notion  that  the  operation  of  a  rule 
may  be  restricted  by  making  it  more  general,  seems 
highly  absurd.  Every  one  must  see  that  the  more 
general  an  enacted  rule  is,  the  more  of  future  un- 
known cases  it  will  cover.  Suppose  a  general  rule 
were  enacted  that  promises  made  upon  consideration 
were  binding.  This,  if  it  is  made  to  mean  anything, 
means  that  all  such  promises  are  binding,  and  the 
rule  would  cover  a  multitude  of  invalid  promises,  such 
as  those  made  by  infants  or  insane  persons,  or  fraud- 
ulent promises,  and  promises  against  public  policy 
Every  case  of  a  promise  made  on  consideration, 
present  or  future,  known  or  unknown,  would  be 
absolutely  governed  by  such  an  enactment,  and  it 
would  excite  a  smile  of  derision  in  any  court  called 
upon  to  interpret  the  rule  to  suggest  that  it  did  not 
profess  to  cover  future  and  unknown  cases. 

There  are  some  so-called  practical  minds  who, 
while  admitting  the  force  of  the  reasons  I  have  given 
for  rejecting  the  theory  of  Codification,  still  think 
that  there  is  a  tendency  towards  it  at  present  which 
cannot  be  resisted,  and  that  this  affords  some  proof 
that  the  system  possesses  real  advantages,  and  they 
seem  inclined  to  yield  to  this  evidence.  Their  view 
seems  to  be  that,  though  it  is  theoretically  impossible 
to  make  law  by  legislation,  under  which  questions 


Growth  and  Function  275 

arising  upon  future  novel  transactions  or  new  group- 
ings of  facts,  can  be  correctly  adjudicated,  yet  the 
evil  and  inconvenience  arising  from  this  are  ex- 
aggerated, and  that  the  transactions  of  the  past 
which  have  fallen  under  judicial  decision  have 
presented  a  variety  and  complexity  sufficient  to 
produce  a  full  development  of  legal  principles,  and 
that  the  transactions  of  the  future  will  be,  in  the 
main,  simply  repetitions  of  those  which  have  already 
been  considered — not  indeed  repetitions  in  all  details, 
but  in  all  material  features,  and  that  if  the  law,  as 
at  present  developed  and  ascertained,  were  enacted 
in  writing,  there  would  not  be  very  many  instances 
in  which  it  would  fail  to  dispose  correctly  of  disputes 
as  they  arise,  and  that  the  evil  and  inconvenience 
which  would  occasionally  result  from  its  ill-adapta- 
tion to  new  groupings  of  fact  would  be  outweighed  by 
the  benefit  which  would  be  derived  from  the  greatly 
increased  certainty  and  ease  of  acquisition  which,  as 
they  suppose  are  the  distinguishing  advantage  of 
codified  law. 

To  think  that  an  unscientific  method  may,  on  the 
whole,  be  preferable  to  a  scientific  one,  is  a  notion  to 
which  not  much  indulgence  should  be  extended 
within  the  walls  of  a  university;  but  in  the  endeavour 
to  secure  the  adoption  of  scientific  truth  the  argu- 
ments of  those  who  are  called  practical  men  should  -not 
be  altogether  dismissed,  even  though  they  should  be, 
as  they  often  are,  merely  superficial  or  ignorant  men. 
The  view  suggested  is  that  while  rules  of  law  enacted 
by  legislation  in  a  code  might  be  of  inferior  quality  as 
instruments  for  the  government  of  conduct,  they 


276  Law,  Its  Origin 

would  tend  to  diminish  the  element  of  uncertainty  in 
the  law,  and  be  of  great  advantage  in  this  way,  but  I 
apprehend  that  this  apology  for  codification  has  quite 
as  little  foundation  as  any  other.     What  is  the  nature 
of  that  uncertainty  which,  to  some  extent,  attaches  to 
unwritten  law?    As  to  cases  which  have  happened 
in  the  past  and  have  been  adjudicated  upon,  there  is 
no  uncertainty.     The  precedents  make  everything 
plain,  but  when  a  case  arises  different  in  some  respect 
from  any  preceding  one,  uncertainty  may  arise.     One 
person  thinks  that  the  new  element  of  fact  which 
makes  the  case  a  novel  one  is  not  material  and  that 
the   rule   already   established    should    govern;    an- 
other thinks  it  material  and  that  it  should  constitute 
an  exception,  or  matter  for  a  new  subclassification. 
Take  for  example,  the  case  of  marine  insurance  as 
we  may  suppose  the  law  upon  that  subject  to  have 
grown  up.     An  underwriter  insures  a  ship  against 
the  perils  of  the  sea,  and  she  is  lost  or  damaged  by 
such  perils.     There  is  no  uncertainty  here.      Con- 
tracts of  insurance  have  long  been  customary.     The 
event  having  occurred  against  which  the  insurance 
was  made,  the  insured  expects  to  be  made  good  and 
the  underwriter  equally  expects  to  indemnify  him. 
Another  case  of  such  insurance  occurs  and  a  similar 
loss,  but  the  underwriter  now  learns  for  the  first  time 
that  the  ship  was  unseaworthy  at  the  beginning  of 
the  voyage.     Let  it  be  supposed  that  the  ship  owner 
himself  did  not  know  that  she  was  unseaworthy.    He 
demands  his  indemnity  and  perceives  no  sufficient 
reason  why  he  should  not  have  it.     It  is  the  universal 
custom  for  men  to  perform  their  contracts,  and  in  the 


Growth  and  Function  277 

case  of  marine  insurance,  in  particular,  multitudes  of 
instances  had  occurred  in  which  losses  were  promptly 
paid;  in  other  words,  his  expectation  of  payment, 
his  feeling  that  he  ought  to  be  paid,  his  sense  of  jus- 
tice— all  different  expressions  of  the  same  thing,  are 
founded  upon  this  custom.  If  we  employed  the 
language  of  logic  we  should  say  that  he  assigned 
the  case  to  the  class  of  binding  contracts.  But  the 
underwriter  takes  a  different  view.  He  says  "No 
intelligent  and  honest  man  sends  an  unseaworthy 
ship  to  sea.  The  universal  custom  is  the  other  way. 
There  may  be  exceptions,  but  they  are  very  few.  All 
ship  owners  have  their  ships  examined  and  put  in 
complete  condition  to  meet  the  perils  they  are  likely 
to  encounter,  and  if  any  one  fails  to  do  this  he  is 
grossly  negligent.  I  had  a  right  to  rely  on  this  cus- 
tom; I  did  rely  upon  it  and  supposed  I  was  insuring 
a  seaworthy  ship."  The  ship  owner  replies,  "No 
rule  has  ever  as  yet  been  laid  down  to  the  effect  that 
an  applicant  for  insurance  warrants  that  his  ship  is 
seaworthy.  You  are  endeavouring  to  incorporate  into 
the  contract  a  stipulation  which  is  not  to  be  found 
there.  I  did  not  deceive  you.  You  could  have  ex- 
amined the  ship  as  easily  as  I  could,  and  if  you  failed 
to  do  so  the  fault  is  your  own.  I  know  very  well 
that  ship  owners  are  in  the  habit  of  examining  their 
ships  before  sending  them  to  sea.  I  examined  this 
one,  but  did  not  happen  to  discover  the  defect." 
The  case  is  made  the  subject  of  litigation,  the 
reasons  of  the  contending  parties  are  subjected  to 
close  examination,  and  the  final  decision  is  that  there 
was  in  the  contract  an  implied  warranty  that  the  ship 


278  Law,  Its  Origin 

was  seaworthy,  and  consequently  that  the  assured 
was  not  entitled  to  recover  for  his  loss.  Here  was  an 
uncertainty  arising  from  a  reasonable  doubt  concern- 
ing the  category  in  which  a  particular  case  should 
be  placed.  It  was  terminated  by  the  decision;  but 
doubts  of  the  like  character  continually  arose  in 
the  development  of  the  same  branch  of  the  law,  as 
cases  presenting  novel  features  disclosed  themselves. 
When  a  ship  owner,  having  a  ship  at  sea  uninsured 
or  not  fully  insured,  and  having  received  intelligence 
that  she  had  encountered  severe  weather  which  might 
have  damaged  or  destroyed  her,  effected  an  insur- 
ance upon  her  without  disclosing  his  knowledge,  and 
a  loss  having  occurred,  made  a  claim  for  indemnity, 
it  was  a  matter  of  uncertainty  whether  the  law  should 
allow  it.  The  decision  resolved  that  and  added  a 
new  rule  to  the  law  of  insurance,  and  when  a  similar 
claim  was  made  upon  a  policy  effected  under  like 
circumstances,  and  with  a  like  failure  to  disclose,  but 
with  the  new  feature  that  the  underwriter  actually 
knew,  from  other  sources,  all  the  information  which 
the  assured  failed  to  disclose,  still  another  uncer- 
tainty arose,  which  was  in  turn  removed  by  judicial 
decision,  and  another  rule  was  added  to  the  same 
branch  of  law.  In  this  way,  the  whole  law  of  insur- 
ance has  been  built  up,  and  what  is  true  of  insurance 
is  true  of  every  other  branch  of  the  unwritten  law. 

If  we  consult  the  books  of  reports,  the  digests,  and 
treatises,  with  the  view  of  discovering  how  much  of 
the  uncertainty  in  the  unwritten  law  is  assignable  to 
the  same  cause,  namely,  transactions  presenting 
novel  features,  we  shall  find  that  nearly  all  is  of  this 


Growth  and  Function  279 

character,  and  that  it  should  arise  from  this  source, 
and  exist  to  such  a  large  degree,  will  excite  no  wonder 
when  we  again  reflect  upon  what  our  analysis  has  in- 
formed us  to  be  the  true  nature  of  the  science.  It  is 
the  examination  of  the  features  of  transactions  and 
assigning  them  to  the  jural  classes  in  which  they  be- 
long, or  creating  new  classifications  when  this  is 
needed;  and  as  the  law  applicable  to  any  case  can  not 
be  known  until  this  operation  has  been  performed,  it 
can  not  be  known  for  any  new  case  until  such  case  has 
come  to  light  and  has  been  subjected  to  judicial  de- 
cision. So  far,  therefore,  as  the  future  discloses  to 
us  new  groupings  of  fact,  the  law  must  necessarily  be 
uncertain,  and  inasmuch  as  the  world  and  life  are 
forever  developing  and  displaying  new  features,  this 
uncertainty  will  forever  continue,  and  as  it  is  accord- 
ing to  the  order  of  nature  it  can  not  be  wrong  or  re- 
grettable. To  contend  with  such  uncertainty,  to 
dispel  it  by  the  exertion  of  our  highest  powers,  is  part 
of  the  discipline  of  life  and  the  glorious  arena  for 
the  display  of  those  faculties  which  our  profession  calls 
into  exercise.  The  work  may  be  difficult,  but  diffi- 
culty is  necessary  to  progress.  "Progress  is  the  child 
of  struggle,  and  struggle  is  the  child  of  difficulty." 

Such  being  the  nature  of  the  uncertainty  of  the 
unwritten  law,  it  is  manifest  that  codification,  how- 
ever defined  or  modified,  can  do  nothing  to  remove  it. 
It  can  be  cleared  up  only  in  the  way  pointed  out 
by  patiently  scrutinising  the  features  of  each  novel 
grouping  of  facts,  as  it  presents  itself,  and  determin- 
ing the  classification  to  which  it  belongs,  but  codifica- 
tion, at  the  start,  refuses  to  adopt  this  method,  and 


280  Law,  Its  Origin 

assumes  to  be  able  to  classify  transactions  before 
they  come  into  being,  and,  therefore,  before  they  can 
be  known. 

There  is  a  sort  of  unconscious  belief  with  the  prac- 
tical minds  of  whose  views  I  am  speaking,  that 
though  enacted  rules  of  law  may  not  well  suit  many 
transactions  in  the  future,  yet  that,  being  enacted, 
men  will  conform  their  conduct  to  them,  and  that 
thus  uncertainty  may  be  diminished. 

But  this  supposes  that  we  now  have  a  fully  devel- 
oped and  accomplished  world,  and  that  hereafter  we 
are  not  to  be  confronted  with  novel  transactions  to 
any  considerable  extent.  There  is  nothing  to  justify 
such  an  expectation.  If  we  were  to  compare  differ- 
ent periods  in  the  past  with  the  view  of  ascertaining 
in  which  one  there  was  more  of  novelty  in  the  con- 
junctures challenging  judicial  inquiry  and  doubt,  I 
apprehend  that  the  last  century  would  be  pre-eminent. 

I  have  been  speaking  of  one  particular  source  of 
uncertainty  in  the  law,  that  arising  from  our  in- 
ability to  foreknow  an  ever-changing  future.  But 
there  is  another  even  greater.  Uncertainty  arises 
whenever,  from  any  cause,  men  come  to  differ  in 
their  opinions  about  the  law.  Now  of  all  the  causes 
creating  uncertainty  in  opinions  and  beliefs  the 
imperfection  of  language  is  perhaps  the  greatest. 
The  most  learned  men  have  been  employed  un- 
ceasingly ever  since  the  existence  of  the  Christian 
Church  in  interpreting  the  Bible,  and  yet  all  Christen- 
dom is  split  up  into  sectarian  divisions,  based  upon 
conflicting  interpretations.  Desolating  wars  have 
been  waged  as  a  consequence  of  such  uncertainty. 


Growth  and  Function  281 

Our  own  people  have  been  divided  into  political 
parties,  one  of  which  interprets  the  language  of  the 
Constitution  in  one  way,  and  the  other  in  another. 
It  would  require  many  volumes  to  contain  the  record 
of  the  numberless  conflicts  in  the  Courts  of  England 
and  the  United  States  concerning  the  interpretation 
of  a  single  statute — the  Statute  of  Frauds — though 
it  was  framed  by  one  of  the  greatest  lawyers  that  have 
ever  lived.  Writing  is  the  art  of  communicating 
thought  by  means  of  visible  signs,  every  different 
thought  having  a  different  sign  or  signs.  The 
number  of  signs  is  infinite,  and  to  know  them  well 
and  the  exact  signification  of  each  is  one  of  the 
rarest  of  accomplishments.  The  great  majority  even 
of  educated  men  express  their  thoughts  in  language 
of  every  variety  of  uncertainty.  Writers,  however 
skilful,  may  not  completely  express  the  thought 
intended  to  be  communicated,  or  may  use  an  in- 
appropriate word,  and  thus  convey  a  thought 
different  from  the  one  intended,  and  those  of  only 
ordinary  skill  fall  into  numerous  errors.  A  written 
rule  of  law  tainted  by  any  one  of  these  defects  is 
certain  to  raise  doubts  concerning  its  meaning. 
When  interpreted  literally,  it  may  import  something 
which  does  not  accord  with  the  sense  of  justice,  and 
whenever  the  ordinary  sense  of  justice  indicates  one 
thing  and  the  written  law  another,  the  question  at 
once  arises  not  only  with  laymen  but  with  lawyers, 
whether  the  law  can  really  mean  what  it  seems 
plainly  to  declare,  and  the  effort  is  made  to  extract 
from  the  written  language,  by  a  species  of  violent 
interpretation,  a  meaning  accordant  with  the  sense  of 


282  Law,  Its  Origin 

justice.  For  instance,  the  Statute  of  Limitations, 
as  originally  framed,  declared,  in  substance,  that 
actions  of  a  certain  description  could  not  be  main- 
tained unless  brought  within  six  years  after  the 
cause  of  action  had  accrued.  A  base  fraud  has  been 
committed  by  a  man,  and  by  another  fraud  he  has 
succeeded  in  concealing  it  from  his  victim  for  more 
than  six  years.  An  action  at  law  is  brought  after 
the  expiration  of  this  period,  to  recover  damages 
for  the  fraud,  and  the  wrong-doer  triumphantly 
pleads  the  statute.  Nothing  can  be  clearer  than 
that  by  the  language  of  the  statute  the  action  is 
barred,  and  at  the  same  time  it  is  certain  that  the 
legislator  never  intended  such  a  result.  The  oppo- 
site sides  upon  this  question  are  confidently  main- 
tained by  the  counsel  of  the  parties  respectively, 
one  insisting  upon  the  very  words  of  the  statute, 
the  other  upon  the  intention  of  the  legislator,  and  the 
law  is  uncertain  until  it  is  determined  by  a  judicial 
decision.  It  may  be  thought  strange  that  any  one 
should  doubt,  upon  such  clear  language,  that  the 
action  was  barred,  but  I  remember  that  the  very 
question  was  made  at  the  Law  School  in  this  Uni- 
versity, while  I  was  a  student,  in  a  moot  court  case, 
and  that  the  distinguished  head  of  the  school  at  that 
time,  who  had  no  superior  as  a  common  law  judge, 
decided  that  the  suit  could  be  maintained,  declaring 
with  some  humour,  "Fraud  is  said  to  vitiate  con- 
tracts ;  well  it  vitiates  the  applicability  of  the 
Statute  of  Limitations!"  And  so  it  will  ever  be; 
whenever  the  written  law  plainly  contradicts  the 
precepts  of  justice  so  inwoven  into  our  nature  as  to 


Growth  and  Function  283 

seem  instinctive,  a  doubt  will  be  made  whether  the 
legislator  really  intended  what  he  seems  to  have 
declared,  and  all  the  arts  of  reason  and  sophistry 
combined  will  be  employed  to  put  an  interpretation 
upon  his  language  consistent  with  justice.  The 
Koran  was  a  codification  of  Mahometan  law,  and  if 
codification  could  anywhere  succeed  it  would  be  in 
the  stationary  society  of  Islam;  but  the  learned 
doctors  who  administered  that  law  found  it  pregnant 
with  the  same  uncertainties,  and  removed  them 
in  much  the  same  way.  Says  Gibbon: 

"From  the  Atlantic  to  the  Ganges  the  Koran  is  acknowledged 
as  the  fundamental  code,  not  only  of  theology,  but  of  civil  and 
criminal  jurisprudence ;  and  the  laws  which  regulate  the  actions 
and  the  property  of  mankind  are  guarded  by  the  infallible 
and  immutable  sanction  of  the  will  of  God.  This  religious 
servitude  is  attended  with  some  practical  disadvantage;  the 
illiterate  legislator  had  been  often  misled  by  his  own  preju- 
dices and  those  of  his  country;  and  the  institutions  of  the 
Arabian  desert  may  be  ill-adapted  to  the  wealth  and  num- 
bers of  Ispahan  and  Constantinople.  On  these  occasions 
the  Cadhi  respectfully  places  on  his  head  the  holy  volume 
and  substitutes  a  dexterous  interpretation  more  apposite  to 
the  principles  of  equity  and  the  manners  and  policy  of  the 
times."  1 

The  extent  of  the  uncertainty  thus  necessarily 
incident  to  statutory  law  is  vastly  greater  than  is 
commonly  supposed.  The  believers  in  codification 
are  deluded  by  the  notion  that  there  is  by  means  of 
language  a  capability,  not  only  of  making  all  things 
known  by  any  persons  clearly  intelligible  to  others, 
but  of  making  things  clearly  known  which  are  in 
their  nature  uncertain.  But  upon  any  just  com- 

1  Gibbon,  vol.  vi,  p.  283 


284  Law,  Its  Origin 

parison  it  will  be  found  that  the  sum  of  the  un- 
certainties arising  from  statutory  law  is  many  times 
greater  in  proportion  to  its  extent  than  that  met 
with  in  the  administration  of  unwritten  law.  Such 
means  of  comparison  as  are  open  to  us  exhibit  a 
significant  result.  I  have  caused  an  examination  to 
be  made  of  the  comparative  numbers  of  controversies 
arising  respectively  on  written  and  unwritten  law 
in  a  single  year  (1903),  in  three  jurisdictions,  namely 
those  of  England,  New  York,  and  Massachusetts. 
In  England,  out  of  four  hundred  and  eighty  adjudged 
cases,  two  hundred  and  fifteen  arose  upon  common 
law  and  two  hundred  and  sixty- five  on  statutes.  In 
New  York,  out  of  seventeen  hundred  and  eighty- 
eight  decided  cases,  nine  hundred  and  two  arose 
upon  common  law  and  eight  hundred  and  eighty- 
six  upon  written  law.  In  Massachusetts,  out  of  three 
hundred  and  forty-three  cases  two  hundred  and 
nineteen  arose  upon  common  law  and  one  hundred 
and  twenty-four  upon  statutes.  Now  when  we  con- 
sider that  the  field  of  conduct  and  consequent 
numbers  of  transactions  subject  to  the  control  of  the 
unwritten  law  are  many  times  larger  than  those 
governed  by  written  law,  if  the  same  degree  of 
uncertainty  obtained  in  each,  there  should  be,  ceteris 
paribus,  a  number  of  litigations  springing  out  of  un- 
certainty in  the  unwritten  law  many  times  greater 
than  the  number  arising  upon  statutory  law.  There 
is  not  a  day  in  which  in  the  intercourse  of  active 
men  transactions  sometimes  very  numerous  are  not 
entered  into  which  contain  the  possibilities  of  dispute 
concerning  the  common  law,  while  the  transactions 


Growth  and  Function  285 

which  turn  upon  the  language  of  statutes  are  con- 
fined to  a  comparatively  few  subjects  and  few  persons, 
and  yet  the  actual  amount  of  statutory  litigation  as 
appears  from  the  comparison  I  have  given,  does  not 
fall  largely  below  that  of  common  law  litigation. 

Whoever  has  followed  with  attention  the  line  of 
reasoning  I  have  thus  far  pursued,  will,  at  some 
point,  ask  how  it  happens,  if  all  attempts  to  subject 
the  main  government  of  conduct  to  the  operation  of 
written  law  be,  as  I  have  endeavoured  to  show,  un- 
scientific, inexpedient,  and,  indeed,  in  a  certain  sense 
wholly  impracticable,  that  some  of  the  most  culti- 
vated nations  of  ancient  and  modern  times  have 
persistently  acted  upon  a  contrary  policy,  and  made 
general  codes  covering  every  province  of  the  law  the 
basis  of  their  jurisprudence.  This  inquiry  is  indeed 
most  pertinent;  for  if  it  be  true  that  such  nations  have 
subjected  the  whole  matter  of  private  law  to  written 
enactment  and  still  maintained  a  judicial  adminis- 
tration which  will  stand  without  disadvantage  in 
comparison  with  our  own,  the  foregoing  reasonings 
should  receive  further  scrutiny,  or  at  all  events, 
circumstances  should  be  pointed  out  which  might 
explain  this  apparent  incongruity  between  the 
teachings  of  theory  and  experience. 

The  first  observation  to  be  made  upon  this  possible 
objection  is,  that  it  assumes  what  is  not  true.  It 
is  not  true  that  any  nation,  ancient  or  modern,  has 
successfully  undertaken  to  subject  the  whole  body 
of  private  law  to  statutory  forms;  and  it  is  true  that, 
so  far  as  any  such  attempt  has  been  made,  it  has,  in 
every  instance,  been  attended  by  the  confusion  and 


286  Law,  Its  Origin 

mischief  which  have  been  pointed  out  as  the  inevit- 
able consequences  of  such  a  policy.  I  must  there- 
fore take  some  pains  to  expose  this  error  by  a 
reference  to  the  actual  experience  of  other  nations. 

Attention  should  be  called,  at  the  outset,  to  the 
exceedingly  loose  reasoning  which  marks  most  of 
the  common  arguments  by  which  the  expediency 
of  codification  is  sought  to  be  supported  by  the 
teachings  of  actual  experience.  The  examples  of 
Rome,  of  France,  of  Prussia,  or  of  Louisiana,  are 
frequently  cited  as  proofs  that  codes  of  private  law 
should  everywhere  be  adopted.  Such  arguments 
can  have  no  force  unless  coupled  with  proof  of  two 
things:  first,  that  the  judicial  administration  of 
private  law  in  the  countries  referred  to  has  actually 
been  under  the  control  of  written  codes;  and  second, 
that  such  judicial  administration  is  superior  to  our 
own.  But  such  proof  is  not  even  attempted.  It 
would  be  impossible  to  make  it;  the  argument,  how- 
ever, tacitly  and  falsely  assumes  the  fact. 

The  example  first  to  be  considered  is  that  of 
Rome.  This  is  the  one  most  frequently  urged, 
we  will  not  say  by  the  few  learned,  temperate,  and 
prudent  advocates  of  codification,  for  there  are  such, 
but  by  those  who  imagine  that  most  of  the  diffi- 
culties we  meet  in  the  administration  of  law  come 
from  the  circumstance  that  it  is  not  expressed 
in  writing.  They  seem  to  have  a  notion  that  the 
jurisprudence  of  Rome,  until  the  time  of  Justinian, 
was  in  a  state  of  utter  confusion  and  uncertainty, 
and  that  by  the  composition  of  a  code  embracing  all 
departments  of  the  law,  that  Emperor  succeeded  in 


Growth  and  Function  287 

bringing  order  out  of  chaos,  and  established  a  system 
which,  in  its  actual  operation,  secured  to  the  people 
over  which  it  was  extended  the  blessings,  not  thereto- 
fore enjoyed,  of  a  scientific,  certain,  and  easy  admin- 
istration of  justice.  Mr.  Field,  himself,  in  his 
defence  of  the  policy  of  codification  contained  in  the 
introduction  to  his  proposed  Civil  Code,  makes,  as 
his  first  argument,  an  appeal  to  the  example  of  Rome. 
He  says: 

"It  [the  feasibility  of  a  complete  codification  of  the  law] 
was  fully  proven  by  what  had  been  done  in  respect  to  the  law 
of  other  countries.  The  law  of  Rome  in  the  time  of  Justinian 
was,  to  say  the  least,  as  difficult  of  reduction  into  a  Code  as 
is  our  own  law  at  the  present  day.  Yet  it  was  thus  reduced, 
though,  no  doubt  to  the  disgust  and  dismay  of  many  a  lawyer 
of  that  period.  The  concurring  judgment  of  thirteen  cen- 
turies since  has,  however,  pronounced  the  Code  of  Justinian 
one  of  the  noblest  benefactions  to  the  human  race,  as  it  was 
one  of  the  greatest  achievements  of  human  genius.  "  1 

These  sounding  phrases  would  excite  a  smile  from 
the  civilians.  The  Code  of  Justinian  is  but  a  revision 
and  consolidation  of  the  imperial  constitutions, 
which  correspond  with  our  statutes,  and  which,  taken 
together,  constituted  what  may  be  called  the 
statutory  law  of  the  Empire,  and  which,  for  the  most 
part,  related  to  the  organism  of  the  State,  the  forms 
of  its  institutions,  its  officers  and  their  duties,  in  other 
words,  covering  the  same  matter  which  our  statute 
law  covers,  and  which,  as  I  have  repeatedly  said, 
is  the  appropriate  province  of  written  law.  Instead 
of  being  one  of  the  ' '  highest  achievements  of  human 
genius,' '  it  is  a  work  certainly  not  superior  to  any  one 

1  Field,  Introduction  to  Civil  Code,  p.  xv. 


288  Law,  Its  Origin 

of  a  hundred  similar  ones  which  have  been  executed 
from  time  to  time  in  our  own  States  and  in  other 
nations,  and  instead  of  being  properly  described  as 
"one  of  the  noblest  benefactions  to  the  human  race, " 
it  is  something  which  very  few  individuals  of  the 
human  race  know  or  care,  or  need  to  know  or  care, 
anything  about.1 

The  eulogy  often  expended  upon  the  Roman  law 
by  its  admirers,  which  Mr.  Field  has  borrowed 
and  applied  with  somewhat  ludicrous  effect  to  the 
Code,  belongs  to  another  part  of  the  work  of 
Justinian,  the  Digest,  or  Pandects,  which  con- 
sisted of  a  digest  of  the  treatises  of  the  most  illus- 
trious writers,  selected  from  a  preceding  and  purer 
age  of  Roman  jurisprudence.  This  work  covered 
the  domain  of  private  law,  that  which  relates  to  the 
rights  and  obligations  of  men  in  their  ordinary  deal- 
ings with  each  other,  and  which  I  have  so  often 
insisted  upon  as  being  the  appropriate  and  peculiar 
province  of  unwritten  law.  It  was  an  attempt  to 
gather  together,  to  consecrate,  and  by  consecrating 
to  preserve  those  priceless  contributions  to  juris- 
prudence which  the  blended  thought  and  experi- 
ence— the  unwritten  law — of  a  thousand  years  had 

1  "  The  Code  contains  the  decrees  of  the  Emperors,  from  Constantino 
to  Justinian  and  has  the  least  reputation  of  Justinian's  works.  In  re- 
spect of  Latinity,  it  is  inferior  to  the  Digest  and  Institutes ;  as  regards 
style,  it  is  bombastic  and  inflated.  Its  arrangement  is  not  superior 
to  that  of  the  Pandects,  while  in  respect  of  esoteric  merit  it  is  con- 
tradictory and  sometimes  even  unintelligible.  Professors  fear  to 
attempt  its  explanation ;  students  shrink  from  it,  while  commentators 
only  use  it  to  explain  passages  in  the  Digest." 

Juridical  Society  Papers,  vol.  i.,  p.  487  by  Patrick  MacChombaich 
(Colquhoun.) 


Growth  and  Function  289 

made,  and  which  a  declining  age  was  no  longer  able 
to  enlarge  and  was  beginning  to  forget.  The  design 
was  noble,  although  the  execution  was  exceedingly 
imperfect;  but  it  would  be  the  gravest  of  errors  to 
seize  upon  the  glory  which  belongs  to  the  authors 
of  this  system  of  law  and  transfer  it  to  Tribonian 
and  his  colleagues  who  abridged  it,  or  to  their  im- 
perial master,  who  gave  it  his  sanction. 

In  order  to  ascertain  the  true  import  of  the  lesson 
taught  by  the  history  of  Roman  law  and  the  work  of 
Justinian,  we  must  consider  with  some  precision 
what  the  sources  of  that  law  were,  its  condition  when 
it  engaged  the  attention  of  that  Emperor,  and  his 
dealings  with  it.  A  very  hasty  sketch  is  all  that 
my  limits  permit. 

I  have  heretofore  spoken  of  the  law  of  the  Twelve 
Tables,  which  was  the  work  of  a  Commission  styled 
the  Decemviri,  created  about  the  year  450  B.C., 
designed  to  compose  the  dissensions  between  the 
plebeian  and  the  patrician  classes.  Of  this  law,  in 
its  original  form,  fragments  only  remain;  but  it 
seems  probable  that  its  framers  extended  their  work 
over  a  larger  area  than  the  points  in  dispute,  and 
attempted  to  reduce  to  written  forms  the  main  body 
of  the  pre-existing  law.  The  Twelve  Tables,  there- 
fore, were,  to  some  extent,  in  the  nature  of  a  general 
code,  which  attempted  to  provide  for  future  cases. 
What  must  happen  in  every  such  case  to  the  end  of 
time,  happened  here.  In  the  practical  work  of 
administering  justice,  the  Twelve  Tables  were  found 
to  be  an  obstacle;  the  rigid  letter  of  the  law  was 
constantly  found  not  to  be  suited  to  the  new  and 
19 


290  Law,  Its  Origin 

unforeseen  cases,  arising  in  endless  succession.  One 
of  two  things  was  necessary;  either  that  the  letter  of 
the  law  should  be  departed  from,  or  the  right  admin- 
istration of  justice  be  sacrificed.  In  such  a  contest 
there  can  be  but  one  result.  It  is  the  letter  of  the 
law  which  must  yield;  and  this  was  accomplished  in 
Rome,  as  in  like  cases  it  has  been  accomplished 
everywhere  else,  by  the  arts  of  subtle  exposition,  and 
the  invention  and  employment  of  fictions,  and  other 
devices  by  which  the  written  law  is  apparently 
obeyed,  but  really  evaded. 

One  agency  by  which  this  result  was  accomplished 
came  through  a  peculiar  incident  of  the  action  of  the 
judicial  tribunals.  The  Roman  praetors,  whose  office 
most  nearly  resembled  that  of  our  judges,  found 
continual  occasion  to  supplement  or  evade  the  rigid 
and  ill-adapted  language  of  the  Tables;  and  in  order 
that  the  public  might  know  beforehand  the  extent 
to  which  this  discretionary  power  of  the  praetor 
would  be  carried,  it  became  the  custom  for  each 
of  these  magistrates  before  entering  upon  his  judicial 
functions  to  draw  up  and  promulgate  what  was 
styled  an  edict,  in  which  the  rules  were  laid  down  by 
which  he  avowed  that  he  would  be  guided  in  his 
official  action.  This  edict,  however,  not  being 
strictly  law,  was  itself  interpreted  and  applied  with 
as  much  latitude  as  it  exhibited  towards  the  rigid 
code  it  was  designed  to  supplement;  and  as  the 
praetor's  term  of  office  embraced  a  year  only,  the 
successive  praetorian  edicts  effected  those  gradual 
and  almost  insensible  changes  in  the  administration 
of  private  law  which  constitute  what  is  very  properly 


Growth  and  Function  291 

termed  its  development  or  growth.  Each  praetor 
took  the  edict  of  his  predecessor  and  adopted  it  so 
far  as  it  had  stood  the  test  of  actual  experience, 
supplementing  and  amending  it  in  those  particulars  in 
which  it  had  proved  defective.  The  Roman  prastor, 
however,  was  not  a  master  of  the  science  which  he 
affected  to  expound.  He  was  not,  as  with  us, 
selected  from  the  class  of  experts  in  the  law,  wholly 
by  reason  of  his  supposed  prominence  among  his 
fellows,  and  called  upon  to  devote  himself  for  suc- 
cessive years  to  judicial  duties.  He  was  an  aspiring 
politician,  passing  through  the  various  grades  of 
official  dignity  on  his  way  to  the  consulship,  and 
discharging  for  a  single  year  the  duties  of  judicial 
office.  It  was  impossible  that  the  great  function  of 
administering  justice  in  a  civilised  state  could  be 
performed  by  the  unassisted  labours  of  these  fleeting 
officials.  In  the  law,  as  in  all  other  sciences  or  arts, 
society  demands  the  genius  and  skill  of  experts;  and  in 
some  form,  direct  or  indirect,  this  demand  must  be 
supplied;  and  this  introduces  me  to  the  second  and 
principal  agency  by  which  the  customary  law  in  the 
Roman  State  was  at  the  same  time  cultivated,  de- 
veloped, and  applied  to  the  actual  business  of  life. 

This  was  the  class  of  jurisconsults — private  citizens, 
whose  highest  ambition  was  satisfied  by  the  employ- 
ment of  studying  the  science  of  jurisprudence  and 
bestowing  the  benefit  of  their  labours  upon  the  public 
or  their  clients.  To  them  the  prastor  resorted  for  aid 
in  the  composition  of  his  annual  edict,  the  private 
citizen  for  advice,  and  the  principal  officers  of  State, 
and  the  Emperors  themselves,  for  guidance  in  the 


292  Law,  Its  Origin 

discharge  of  legislative  and  executive  duties.  Never 
in  any  society,  ancient  or  modern,  was  the  office  of 
the  jurist  more  respectable,  or  more  gloriously  filled. 
The  classic  age  of  the  jurisprudence  of  Rome,  co- 
inciding with  the  period  of  her  renown  in  arts  and 
arms,  and  extending  from  the  birth  of  Cicero  to  the 
reign  of  Alexander  Severus,  is  full  of  illustrious 
names,  whose  lives  were  devoted  to  the  task  of 
developing  the  science  of  jurisprudence,  and  adapting 
it  to  the  evershifting  phases  of  human  affairs.1 

The  development  and  growth  of  Roman  juris- 
prudence, as  thus  sketched,  continued  until  the  reign 
of  the  Emperor  Hadrian;  and  during  this  long  period, 
the  just  boundary  between  the  provinces  of  written 
and  unwritten  law  was  preserved.  The  public 
administration  of  the  State  was  regulated  by  the 
former,  and  the  field  of  private  rights  and  duties  was 

1  Gibbon  has  sketched  in  a  few  master  strokes  this  peculiar  feature 
of  Roman  policy  by  which  the  unwritten  law  became  supreme  in  the 
administration  of  private  justice.  The  shining  paradox  which  closes 
the  citation,  compresses  into  a  line  what  might  be  expanded  into  pages : 
"A  more  liberal  art  was  cultivated,  however,  by  the  sages  of  Rome, 
who,  in  a  stricter  sense,  may  be  considered  as  the  authors  of  the  civil 
law.  The  alteration  of  the  idiom  and  manners  of  the  Romans  rendered 
the  style  of  the  Twelve  Tables  less  familiar  to  each  rising  generation, 
and  the  doubtful  passages  were  imperfectly  explained  by  the  study 
of  legal  antiquarians.  To  define  the  ambiguities,  to  circumscribe 
the  latitude,  to  apply  the  principles,  to  extend  the  consequences,  to 
reconcile  the  real  or  apparent  contradictions,  was  a  much  nobler  and 
more  important  task;  and  the  province  of  legislation  was  silently  in- 
vaded by  the  expounders  of  ancient  statutes.  Their  subtle  interpre- 
tations concurred  with  the  equity  of  the  praetor  to  reform  the  tyranny 
of  the  darker  ages;  however  strange  or  intricate  the  means,  it  was 
the  aim  of  artificial  jurisprudence  to  restore  the  simple  dictates  of 
nature  and  reason,  and  the  skill  of  private  citizens  was  usefully  em- 
ployed to  undermine  the  public  institutions  of  their  country."  Gib- 
bon's Decline  and  Fall,  (Murray,  1862)  vol.  v.  p.  273. 


Growth  and  Function  293 

occupied  by  the  latter.  The  Emperors  had,  indeed, 
long  been  invested  with  absolute  power,  but  it  was 
sparingly  exercised  in  the  province  of  private  law, 
the  great  mass  of  which  still  remained  substantially 
unwritten. 

The  Empire  was  now  verging  towards  its  fall. 
Rome  began  to  feel  more  and  more  the  arbitrary 
hand  of  her  master.  The  decadence  was  marked 
by  a  corresponding  decline  in  jurisprudence,  and 
the  extension  of  the  province  of  legislation  over  the 
proper  domain  of  the  unwritten  law  was  one  of  the 
principal  features.1  Whether  this  extension  of  legis- 
lative power  over  the  domain  of  private  law  was  the 
cause,  or  the  consequence,  or  simply  an  accompani- 
ment of  the  decline  in  the  juristic  literature,  we  will 
not  undertake  to  pronounce;  but  upon  either  view 
the  fact  is  significant. 

It  was  indeed,  impossible  for  the  noble  juris- 
prudence of  Rome,  which  had  its  origin  under  the 
free  influences  of  the  Republic,  to  preserve  its 
integrity  amid  the  general  decay  of  morals,  arts, 
letters,  and  arms  which  marked  the  decline  of  the 
Empire,  but  two  circumstances  tended  greatly  to 

1  "  Hadrian  appears  to  have  been  the  first  who  assumed  without  dis- 
guise the  plentitude  of  absolute  power.  And  this  innovation,  so 
agreeable  to  his  active  mind,  was  countenanced  by  the  patience  of 
the  times  and  his  long  absence  from  the  seat  of  government.  The 
same  policy  was  embraced  by  succeeding  monarchs,  and,  according 
to  the  harsh  metaphor  of  Tertullian,  '  the  gloomy  and  intricate  forest 
of  ancient  laws  was  cleared  away  by  the  axe  of  royal  mandates  and 
constitutions. '  During  four  centuries  from  Hadrian  to  Justinian,  the 
public  and  private  jurisprudence  was  moulded  by  the  will  of  the 
sovereign,  and  few  institutions,  either  human  or  divine,  were  per- 
mitted to  stand  on  their  former  basis."  Milman's  Gibbon,  vol.  iv.,  p. 


294  Law,  Its  Origin 

hasten  the  march  of  its  degeneracy.  In  the  first 
place  the  changes  in  human  affairs  were  continually 
rendering  much  of  the  works  of  the  classic  jurists 
obsolete,  and  requiring  new  adaptations  and  changes 
of  the  law.  In  the  next  place,  before  the  art  of 
printing  was  known,  the  cost  of  the  materials  of 
writing  was  so  great  that  the  works  of  a  past  age 
could  not  be  perpetuated  and  multiplied  at  a  price 
which  would  enable  any  but  the  very  rich  to  possess 
them.  They  gradually  disappeared  and  perished 
under  the  decay  of  time,  except  so  much  of  them 
as  were  preserved  in  the  treatises  and  commentaries 
of  succeeding  jurists;  and  the  genuineness  of  these 
fragments  was  the  subject  of  frequent,  and  sometimes 
insoluble,  dispute.1 

Such  was  the  condition  in  which  Justinian  found 
the  Roman  law.  It  may  be  briefly  summed  up  as 
follows: 

First.  The  statutory  law  was  embodied  in  the 
earlier  collections  known  as  the  Gregorian,  the 
Hermogenian,  and  Theodosian  Codes,  and  in  the  sub- 
sequent Constitutions  of  the  later  Emperors,  and 
was  encumbered  with  the  superfluities  and  con- 

1  The  books  of  jurisprudence  were  interesting  to  few,  and  enter- 
taining to  none;  their  value  was  connected  with  present  use,  and  they 
sunk  forever  as  soon  as  that  use  was  superseded  by  the  innovations 
of  fashion,  superior  merit,  or  public  authority.  In  the  age  of  peace 
and  learning,  between  Cicero  and  the  last  of  the  Antonines,  many 
losses  had  been  already  sustained,  and  some  luminaries  of  the  school 
or  forum  were  known  only  to  the  curious  by  tradition  and  report. 
Three  hundred  and  sixty  years  of  disorder  and  decay  had  acceler- 
ated the  progress  of  oblivion ;  and  it  may  fairly  be  presumed  that,  of 
the  writings  which  Justinian  is  accused  of  neglecting,  many  were  no 
longer  to  be  found  in  the  libraries  of  the  East." — Milman's  Gibbon, 
vol.  v.,  p.  286. 


Growth  and  Function  295 

tradictions  which  necessarily  result  from  successive 
enactments  relating  to  the  same  subjects  through  a 
long  period  of  time.  It  required  a  thorough  revision. 
Second:  The  unwritten  law,  the  authoritative 
sources  of  which  for  a  thousand  years  had  been  the 
writings  of  private  jurisconsults,  was  in  still  greater 
confusion.  The  works  of  the  universally  recognised 
masters  of  the  science  had  first  become  in  part 
superseded,  and  finally  lost.  Their  successors  were 
an  ignoble  multitude  "of  Syrians,  Greeks,  and 
Africans,  who  flocked  to  the  Imperial  court  to  study 
Latin  as  a  foreign  tongue  and  jurisprudence  as  a 
lucrative  profession."  There  was  a  want  of  that  in- 
strumentality, indispensable  in  the  administration 
of  unwritten  law,  namely,  universally  recognised 
authorities  to  which  appeal  could  be  made. 


LECTURE  XII 

WE  are  now  in  a  situation  to  understand  and 
appreciate  the  nature  of  Justinian's  work.  It 
embraced  three  principal  features:  (i)  To  reduce  to 
one  compact  and  consolidated  body  the  whole  mass 
of  statutory  law,  and  republish  it,  so  that  it  should 
completely  supersede  the  former  Codes  and  the  sub- 
sequent imperial  Constitutions;  (2)  To  make  an 
authorised  digest  of  the  whole  mass  of  the  juristic 
literature,  embracing,  as  it  did,  the  entire  province 
of  the  unwritten  private  law  of  the  Empire,  the 
praetorian  edicts,  and  the  writings  of  all  subsequent 
jurists;  (3)  The  composition  of  a  treatise  or  manual 
for  the  instruction  of  students  and  magistrates  in  the 
elementary  principles  of  this  legal  system. 

The  first  part  of  this  scheme  was  carried  out  by 
the  execution  and  publication  as  law  of  what  is 
called  "The  Code,"  which  is  confined,  for  the  most 
part,  to  the  proper  province  of  written  law,  the  law 
relating  to  the  public  administration  of  the  Empire, 
and  fills  somewhat  the  same  place  in  the  Roman 
law  of  this  period  as  is  occupied  by  the  Revised 
Statutes  in  the  legal  system  of  New  York.  We  may 
dismiss  this  from  further  notice  as  being  a  work 
of  comparatively  little  interest  to  succeeding  ages, 

296 


Law :  Origin,  Growth,  and  Function    297 

and  throwing  no  light  upon  the  main  question  with 
which  we  are  dealing.1 

The  third  part  of  Justinian's  work  was  accom- 
plished by  the  composition  of  what  is  called  "The 
Institutes,"  and  this  also  merits  little  attention 
here.  It  was  in  no  respect  a  Code  of  law,  but  a 
manual  for  the  instruction  of  students  in  a  know- 
ledge of  the  law. 

It  is  the  second  part  of  this  imperial  scheme  which 
especially  demands  our  attention;  for  it  is  this  which 
is  really  intended  when  the  work  of  Justinian  is 
appealed  to  as  supporting  an  argument  in  favour 
of  codification.  It  consisted  in  a  digested  abridg- 
ment of  all  that  was  supposed  to  be  true  and  of 
present  utility  in  the  treatises  of  the  Roman  jurists. 
Rejecting  the  feeble  and  degenerate  productions  of 
the  later  lawyers,  he  went  back  to  the  time  of  the 

1 "  In  general  it  may  be  said  that  the  Codex  consists,  to  a  much  greater 
extent  than  the  Digest,  of  public  law  in  all  its  departments ;  that  is  the 
law  which  prescribes  and  regulates  the  organism  of  the  State,  with  all 
State  institutions,  whether  civil  or  ecclesiastical.  Here  belongs  all 
that  relates  to  forms  of  government,  modes  of  administration,  duties 
of  public  officers,  and  the  like.  Under  public  law  is  included  also 
criminal  law,  the  law  of  crime  and  punishment — a  crime  being  a  wrong 
action  viewed  as  affecting  the  rights,  not  of  individuals,  but  of  society, 
as  a  violation  of  public  peace  and  order,  as  an  offence  against  the  State. 
On  the  other  hand,  -private  law  is  occupied  with  the  rights  of  individuals, 
with  the  modes  by  which  individuals  may  acquire  such  rights  or  trans- 
fer them  to  others,  and  the  ways  in  which  individuals  may  obtain 
personal  redress  when  these  rights  are  impaired  by  fraud  or  violence. 
Now,  the  fact  which  I  wish  to  emphasise  is  this:  that  the  Digest  is 
composed  of  private  law  in  a  far  larger  proportion  than  the  Codex. 
This  is  a  fact  which  gives  to  the  Digest  something  of  the  superior 
interest  and  importance  which  belongs  to  it.  It  is  mainly  by  reason 
of  the  private  law  which  it  embodies  that  the  Corpus  Juris  has  exerted 
its  immense  influence  on  jurisprudence  and  justice  in  Modern  Europe." 
— Hadley's  Introduction  to  Roman  Law,  p.  14. 


298  Law,  Its  Origin 

perfecting  of  the  Perpetual  Edict  by  Salvius  Julianas, 
and  selected  some  forty  treatises  composed  within 
the  century  succeeding  that  work.  These  were  con- 
densed, digested,  and  arranged  in  fifty  books,  and 
the  completed  work  was  published  and  declared  as 
authoritative  law. 

But  the  important  thing  to  be  here  observed  is  that 
this  work  bore  little  resemblance  to  ordinary  written 
law,  or  to  a  Code,  in  the  sense  in  which  we  are  con- 
sidering that  term.  It  did  not  speak,  as  a  statute 
speaks,  in  the  shape  of  simple  rules  or  commands. 
Composed  from  scientific  treatises,  it  preserved 
many  of  the  features  of  a  scientific  treatise.  It  was 
a  statement  of  the  principles  of  the  science  of  the 
law  in  the  language  of  the  authors  whose  works  were 
selected,  accompanied  with  argument,  explanation, 
and  illustration,  and  naming  the  jurists  whose 
language  was  adopted.  The  stamp  of  imperial  recog- 
nition added  no  new  element  to  the  authority  of  the 
writers  whose  works  were  thus  abridged.  They 
possessed  the  authority  of  law  before.  The  effect 
of  the  codification  was  simply  to  make  the  Digest 
the  only  book  in  which  these  precepts  could  be 
sought.  The  law  in  this  form  had,  in  large  measure, 
the  attributes  of  unwritten  law.  It  was  still  a  law 
of  principles  more  than  a  law  of  words.  It  was 
plastic,  susceptible  of  such  interpretation  and  appli- 
cation as  would  suit  the  infinite  variety  of  aspects 
exhibited  by  human  affairs. 

It  was,  indeed,  no  part  of  the  design  of  Justinian 
to  change  in  any  respect  the  essential  nature  of 
Roman  jurisprudence  as  a  system  of  unwritten  law. 


Growth  and  Function  299 

The  idea  of  a  Code  in  the  modern  sense,  as  a  legis- 
lative republication  of  the  whole  system  of  law  in 
the  imperative  form  of  a  statute,  was  not  present 
to  the  minds  of  Justinian  and  his  advisers.  That 
idea  is  of  modern  origin  altogether.1  His  scheme 
was  in  strict  accordance  with  the  historical  develop- 
ment of  Roman  law.  It  recognised  the  fact  that 
private,  as  distinguished  from  public  law,  was  the 
product  of  the  learning  and  labours  of  the  juris- 
consults; that  after  a  degeneracy  of  three  centuries 
the  age  no  longer  produced  any  of  those  great  ex- 
amples of  original  and  independent  genius  which 
had  illumined  the  golden  era  of  jurisprudence;  and 
that  it  was  no  longer  possible  to  find  among  the  living 
oracles  of  the  law  any  voices  which  commanded  that 
reverence  and  obedience  which  are  at  all  times 
absolutely  essential  to  the  administration  of  private 
justice  between  man  and  man.  He  sought  to  correct 
this  evil:  and  his  method  was  to  gather  together  the 
authentic  remains  of  the  earlier  and  better  jurists, 
to  attach  to  them  selections  from  later  writers  which 
were  necessary  to  accommodate  them  to  the  practical 
needs  of  the  present  time,  and  to  add  to  the  whole 
work  his  imperial  declaration  that  it  alone  should  be 
appealed  to  as  authoritative. 

One  would  imagine  on  reading  some  of  the  high 
sounding  eulogies  of  the  Justinian  codification,  such 
as  that  of  Mr.  Field  which  I  have  quoted,  that  it  was 
the  same  sort  of  treatment  of  Roman  law  as  that 
which  they  advocate  of  our  own  law,  and  that  it  con- 
ferred upon  Roman  society  a  vast  and  permanent 

1  Austin's  Jurisprudence  (Campbell's  Ed.),  vol.  ii.,  p.  920. 


3°o  Law,  Its  Origin 

benefit.  Both  these  notions  are  erroneous.  That 
the  first  is  so,  is  manifest  from  the  sketch  I  have 
given;  and  that  the  second  is  equally  the  case  appears 
from  the  fate  which  legal  historians  inform  us  the 
work  of  Justinian  met  with.  The  whole  scheme, 
Code,  Pandects,  and  Institutes  proved,  so  far  as 
respected  their  practical  efficiency  for  governing  the 
affairs  of  the  Empire,  an  utter  failure.  Scarcely 
had  they  been  completed  before  necessities  for 
amendment  revealed  themselves.  Change  succeeded 
change,  and  the  whole  system  seems,  in  a  compara- 
tively short  period,  to  have  become  either  super- 
seded or  ignored.1  No  support,  therefore,  can  be 

1  "  But  the  Emperor  was  unable  to  fix  his  own  inconstancy;  and, 
while  he  boasted  of  renewing  the  exchange  of  Diomede,  of  transmuting 
brass  into  gold,  he  discovered  the  necessity  of  purifying  his  gold  from 
the  mixture  of  baser  alloy.  Six  years  had  not  elapsed  from  the  publi- 
cation of  the  Code  before  he  condemned  the  imperfect  attempt  by  a 
new  and  more  accurate  edition  of  the  same  work,  which  he  enriched 
with  two  hundred  of  his  own  laws,  and  fifty  decisions  of  the  darkest 
and  most  intricate  points  of  jurisprudence.  Every  year,  or,  according 
to  Procopius,  each  day,  of  his  long  reign  was  marked  by  some  legal 
innovation." — Gibbon's  Decline  and  Fall,  vol.  v.,  p.  287. 

"  The  great  law-book  of  Justinian  seems  to  have  gained  no  very  wide 
currency  among  those  for  whom  it  was  intended,  It  was,  to  a  great 
extent,  superseded  in  practice  by  paraphrases  and  abridgments  of  the 
whole  or  of  particular  parts.  An  inquirer  two  or  three  centuries  later, 
looking  at  the  fate  of  this  Justinian  legislation,  might  have  said  that 
it  was  a  splendid  and  elaborate  failure.  In  the  reign  of  Leo  the  Isaur- 
ian  (717-741)  the  books  of  the  Corpus  Juris  were  hardly  used  at  all  in 
their  original  form;  and  even  the  paraphrases  and  abridgments 
founded  on  it  were  so  ill-adapted  to  the  existing  state  of  the  law,  that 
this  Emperor  thought  it  necessary  to  issue  a  compendious  Code  of  his 
own.  This  was  the  state  of  things  in  the  Eastern  Empire.  In  Western 
Europe  the  Corpus  Juris  had  never  found  currency,  except  in  Italy; 
and  here  in  some  parts  and  cities  of  the  peninsula  it  still  enjoyed  an 
obscure  and  precarious  influence." — Hadley's  Introduction  to  Roman 
Law,  p.  24. 


Growth  and  Function  30 * 

drawn  from  this  experience  in  favour  of  any  con- 
version of  our  unwritten  law  into  statutory  forms. 
The  true  greatness  and  glory  of  the  Roman  law  does 
not  proceed  in  any  degree  from  codification.  It  has 
become  attached  to  that  word  by  accident.  The 
great  classical  jurists  who  reduced  that  law  ta 
scientific  form  had  passed  away  before  the  time  of 
Justinian,  and  afterwards  their  names  and  their 
works  were  alike  overwhelmed  in  the  avalanche  of 
barbarism  which  swept  over  Europe.  The  discovery 
of  the  Pandects  coinciding  with  the  general  awaken- 
ing from  the  ignorance  of  the  Dark  Ages  revealed  to 
the  rising  modern  world  the  treasures  it  contained, 
and  the  merit  of  these  has  thus  come  to  be  connected 
with  the  imperfect  instrument  which  preserved  them, 
but  the  real  merit  of  the  Pandects  belongs  not  to 
the  compilers  of  that  very  imperfect  work,  but  to  the 
original  authors  of  perhaps  the  most  consistent  sys- 
tem of  unwritten  law  which  the  world  has  yet  seen. 
The  principal  modern  states  whose  example  may 
be  appealed  to  by  the  advocates  of  codification 
are  France  and  Prussia.  Indeed,  it  may  be  said  that 
a  code,  in  the  modern  sense  of  that  word,  was  for 
the  first  time  adopted  in  Prussia.  The  measure  was 
initiated  in  1751  by  Frederick  the  Great.  It  was  at 
first  styled  the  Gesetzbuch,  but  was  afterwards  de- 
veloped into  what  is  now  called  the  Landrecht. 
Concerning  this  code  two  observations  are  to  be 
made:  (i)  It  had  its  origin  in  one  of  those  political 
emergencies  which,  as  I  have  heretofore  explained, 
justify  and  reqture  a  resort  to  statutory  law.  A 
number  of  originally  independent  states  had  become 


302  Law,  Its  Origin 

consolidated  into  a  political  unity  and  subjected  to 
the  dominion  of  the  House  of  Brandenburg.  Each 
state  had  its  own  customs  and  consequently  its  own 
laws,  and  the  great  increase  of  intercourse  between 
the  citizens  of  the  different  states  was  attended  with 
mischievous  confusion  and  conflict  which  would 
eventually  pass  away  by  the  prevalence  of  some 
common  customs  over  the  conflicting  ones.  In  such 
cases  the  approach  to  unification  may  be  greatly 
assisted  and  hastened  by  making  the  customs  tending 
to  prevail,  compulsory.  This  can  be  done  with  great 
advantage  by  statutory  law.  Such  law  will  be 
attended  with  difficulties  in  the  enforcement  of  it, 
but  the  confusion  and  difficulty  will  be  less  than  those 
which  it  supersedes.  (2)  The  merits  of  this  work, 
other  than  those  of  hastening  a  desirable  consolida- 
tion of  discordant  social  elements  are  to  be  estimated 
by  its  actual  results;  and  upon  this  point  there  can 
scarcely  be  a  question.  It  became  loaded  with  de- 
claratory laws  passed  to  explain  its  obscurities, 
correct  its  errors,  and  supply  its  deficiencies. 

The  example  of  France  is  frequently  appealed  to, 
and  by  Mr.  Field  himself,  as  a  proof  of  the  success 
and  utility  of  a  general  reduction  of  private  unwritten 
law  to  statutory  forms.  But  none  of  the  strictly 
scientific  supporters  of  codification  have  ventured  to 
employ  so  unfortunate  an  illustration.  As  in  the 
case  of  Frederick,  the  leading  motive  with  the  Em- 
peror Napoleon  was  political  and  dynastic.  France 
was  composed  of  states  originally  independent  of 
each  other,  and  still  maintaining  their  several  and 
discordant  legal  systems.  It  was  a  sound  dictate 


Growth  and  Function  303 

of  public  policy  as  well  as  the  ambition  of  the  Em- 
peror to  consolidate  these  different  elements  into 
one  harmonious  state.  But  looking  to  what  the 
Code  Napoleon  may  have  accomplished  in  the  way 
of  establishing  a  system  of  law  certain,  easy  to  be 
learned,  and  easy  to  be  administered,  it  must  be  pro- 
nounced a  failure.  In  neither  of  these  respects  will 
it  bear  comparison  with  the  system  of  our  common 
law.  Upon  this  point  the  testimony,  not  of  an 
enemy,  but  of  a  distinguished  supporter  of  the  theory 
of  codification  may  be  invoked: 

"It  is  well  known,  for  instance,  that  the  set  of  French  Codes, 
which  in  time  became  the  most  comprehensive  and  self- 
dependent  of  all,  have  been  completely  overridden  by  the 
interpretations  of  successive  and  voluminous  commentators, 
as  well  as  by  the  constantly  accruing  decisions  of  the  Court 
of  Cassation.  In  France,  as  was  intimated  before,  in  treating 
of  another  subject,  there  can  be  no  reliance,  in  any  given  case, 
as  to  whether  a  judge  will  defer  to  the  authority  of  his  prede- 
cessors, or  will  rather  recognise  the  current  weight  attached 
to  an  eminent  commentator,  or  will  extemporise  an  entirely 
novel  view  of  the  law.  The  greatest  possible  uncertainty 
and  vacillation  that  have  ever  been  charged  against  English 
law  are  little  more  than  insignificant  aberrations  when  com- 
pared with  what  a  French  advocate  has  to  prepare  himself 
for  when  called  upon  to  advise  a  client."1 

And  John  Austin  may  be  called  as  a  witness  still 
more  distinguished,  who,  although  a  thorough  be- 
liever in  the  feasibility  and  expediency  of  codifica- 
tion, confesses  his  inability  to  find  anywhere  in 
human  experience  a  successful  example  of  it.  He  says : 

"In  France  the  Code  is  buried  under  a  heap  of  subsequent 
>  An  English  Code,  Sheldon  Amos,  M.A.,  &c.,  &c.,  p.  125. 


304  Law,  Its  Origin 

enactments,  and  of  judiciary  law  subsequently  introduced 
by  the  tribunals.  In  Prussia  the  mass  of  new  laws  and 
authoritative  interpretations  which  have  been  introduced 
subsequently  to  the  promulgation  of  the  Code  is  many  times 
the  size  of  the  Code  itself."  i 

A  brief  reference  must  be  made  to  the  example  of 
Louisiana  where,  as  is  well  known,  a  Code  professing 
to  embrace  the  principal  subjects  of  private  law  has 
been  for  many  years  in  force.  The  following  ob- 
servations are  to  be  made  concerning  this  piece  of 
codification : 

1.  There  was  a  political  necessity  for  an  extension 
of  the  province  of  legislation  over  the  field  of  private 
law,   arising  from  the  circumstance  that   Spanish, 
French,  and  American  law  in  many  cases  competed 
with  each  other  for  supremacy. 

2.  The  code  actually  adopted  was  substantially 
borrowed  from  the  Code  Napoleon,  and  is,  so  far, 
subject  to  the  same  criticism  as  has  been  visited  upon 
that  work  by  the  advocates  of  codification. 

3.  The    defects    so    strikingly    characteristic     of 
French  jurisprudence  would  have  been  repeated  here, 
but  for  the  practical  good  sense  which  has   been 
exhibited  by  the   Bench    and   Bar  of   that    state. 
Largely  imbued  with  the  principles  and  methods  of 
the  English  Common  Law,  they  have  looked  to  that 
body  of  jurisprudence,  so  far  as  the  code  permitted 
them,  as  containing  the  real  sources  of  the  law,  and 
have    fully    adopted    its    maxim    of    stare    decisis. 
Nothing  is  more  observable  than  the  extent  to  which 
the  English  and  American  reports  and  text  books 

1  Lectures  on  Jurisprudence,  Campbell's  Ed.,  vol.  ii.,  p.  125. 


Growth  and  Function  305 

are  cited  as  authoritative  in  that  state.  It  would 
seem  that  the  courts,  except  when  there  is  some 
provision  of  the  code  directly  in  point,  and  except 
in  those  cases  where  the  Civil  Law,  which  lies  at  the 
basis  of  the  legal  system  of  Louisiana,  notoriously 
differs  from  the  Common  Law,  seek  the  rule  in  any 
given  case  in  the  same  quarters  from  which  it  is 
sought  by  us,  and  then  inquire,  if  occasion  arises, 
whether  there  is  anything  in  the  code  inconsistent 
with  the  rule  thus  found. 

4.  But  a  most  impressive  testimony  against  the 
expediency  of  codification  is  found  in  the  deliberate 
criticism  upon  this  code  pronounced  by  one  of  the  most 
distinguished  of  the  judges  who  have  administered 
its  provisions.  It  contains  definitions  of  the  principal 
technical  terms  which  it  employs;  and  it  must  be 
admitted  that  no  code  can  otherwise  well  be  con- 
structed. Full,  complete,  and  accurate  definitions 
are  insisted  upon  by  the  scientific  advocates  of 
codification  as  the  first  requirement  for  such  work. 
Austin  declares  that  the  paucity  of  such  definitions 
is  the  most  glaring  deficiency  in  the  French  Code. 
Now  the  very  existence  of  these  definitions  in  the 
Louisiana  Code  was  found  to  be  one  of  the  greatest 
difficulties  in  administering  it.  Says  Mr.  Justice 
Yost  in  giving  the  opinion  of  the  Court  in  Egerton 
vs.  The  Third  Municipality  of  New  Orleans :  *  "  Defini- 
tions are  at  best  unsafe  guides  in  the  administration 
of  justice,  and  their  frequent  recurrence  in  the 
Louisiana  Code  is  the  greatest  defect  in  that  body 
of  laws." 

20  »  i   La.  Ann.  437. 


306  Law,  Its  Origin 

The  extent  to  which  this  difficulty  is  lost  sight  of 
by  the  advocates  of  codification  is  indeed  marvellous. 
It  would  seem  as  if  the  ordinary  experience  of  every 
lawyer  would  be  enough  to  convince  him  of  the 
hopelessness  of  any  attempt  to  contrive  definitions 
of  terms  which  would  answer  the  unknown  exigencies 
of  the  future.  How  can  that  be  defined  the  bound- 
aries of  which  are  not  known  and  cannot  even  be 
imagined  ?  It  must  turn  out  that  the  new  phases  and 
aspects  of  human  affairs  as  they  arise  will  continually 
prove  contrary  to  all  expectation,  and  will  be  found, 
on  the  one  hand,  to  have  been  caught  up  and  carried 
by  an  ill  advised  definition  into  a  class  to  which  they 
do  not  belong,  or  that  no  definition  has  been  framed 
to  suit  them  and  they  are  thus  left  wholly  unprovided 
for.  The  great  jurists  of  Rome,  unquestionably  the 
most  complete  masters  in  the  accurate  use  of  lan- 
guage, after  a  thousand  years  of  effort,  gave  up  the 
task  in  that  maxim  of  despair,  Omnis  definitio  in 
jure  civili  periculosa1;  yet  it  is  still  argued  that 
the  whole  system  of  private  law  can  be  successfully 
embodied  in  written  language,  although  accurate 
and  infallible  definition  is  an  essential  requisite  at 
every  step  of  the  process! 

Of  the  so-called  codes  recently  compiled  for  the 
British  possessions  in  India,  I  need  only  say: 

i.  That  the  utter  confusion  existing  in  those 
countries  in  respect  even  to  native  law,  without 
mentioning  the  competition  between  that  and  British 
law,  rendered  a  resort  to  statutory  enactments  a 
necessity ; 

1  Dig.  50.  17.  202. 


Growth  and  Function  307 

2.  Mr.  Sheldon  Amos,  already  referred  to,  in  his 
plea  in  behalf  of  an  English  Code,  deprecates  any 
resort  to  the  example  of  the  Indian  Codes  for  light 
in  relation  to  the  problem  of  codifying  the  laws  of 
civilised  nations: i 

California  adopted  some  years  since,  substantially 
the  same  Civil  Code  as  that  which  has  been  so  often 
pressed  for  adoption  upon  the  Legislature  of  New 
York.  So  far  as  the  experiment  affords  any  instruc- 
tion, it  is  of  the  same  character  as  that  derived  from 
the  other  examples  already  commented  upon,  and 
justifies  the  following  observations : 

1.  Even  less  than  in  the  State  of  Louisiana  do 
either  the  bench  or  bar  look  to  it  for  the  true  sources 
of  the  law.     These  are  still  sought  for  the  most  part, 
as  elsewhere  in  communities  inheriting  the  traditions 
and  methods  of  the  common  law,  in  the  reported 
decisions  of  that  and  other  States,  and  in  authori- 
tative text-books;  and  the  code  seems  to  be  brought 
into  consideration  only,  or  chiefly,  when  a  question 
arises  whether  its  provisions  have  changed  the  law. 

2.  The  volume  of  litigation,  so  far  as  may  be 
inferred  from  the  number  of  reported  controversies, 
has  certainly  not  been   diminished.      There  is  no 
evidence   whatever  that   it  has   had   any   sensible 
effect  in  lessening   the  magnitude  of  libraries   re- 
quisite for   obtaining   an    adequate   knowledge  of 
the  law,  or  diminishing  the  labour  of  professional 
study.     In  short,  no  one  practical  advantage  can  be 
pointed  out  as  having  been  gained  by  this  experi- 
ment in  legislation. 

1  An  English  Code,  pp.  36  et  seq. 


308  Law,  Its  Origin 

3.  But  the  mischiefs  which  are  inseparable  from 
the  scheme  have  already  manifested  themselves  in 
notable  ways.  The  Legislature  has  been  unceasingly 
assailed  with  projects  for  amendment.  Some  of 
these  have  been  well-founded,  and  others,  doubtless, 
without  merit.  It  is  a  misfortune  to  live  under 
erroneous  law.  It  is  scarcely  worse  to  live  under 
laws  liable  to  annual  change.  The  worst  result, 
however  has  attracted  the  attention  of  the  learned 
Professor  Pomeroy,  so  well  known  to  our  profession 
by  his  numerous  treatises.  The  courts  are  obliged, 
where  it  is  found  that  the  code  has  changed  the  pre- 
existing law,  to  follow  the  code,  although  against 
their  will.  The  departures  may  be  so  slight  at  first 
as  not  to  prompt  a  resort  to  the  Legislature  for 
amendment;  but  they  tend  gradually  to  become 
wider  and  deeper  and  this  result  has  proceeded  so 
far  in  California  as  to  threaten  a  wide  divergence 
from  the  law  as  settled  in  other  states.  Professor 
Pomeroy  became  alarmed  at  these  symptoms  and 
called  public  attention  to  them  in  a  series  of  articles 
published  in  a  leading  law  journal.  He  suggested  a 
remedy  which,  in  my  opinion,  is  likely  to  be  adopted 
sooner  or  later  wherever  a  codified  law  is  admin- 
istered. We  all  know  that  when  the  courts  of 
common  law  in  the  infancy  of  legislation  came  to  be 
called  upon  to  interpret  statutes,  they  soon  displayed 
their  wisdom  by  hitting  upon  the  now  familiar  rule 
that  statutes  in  derogation  of  the  common  law  are 
to  be  strictly  construed.  The  effect  of  this  was  to 
establish  the  doctrine  that  if  any  particular  case  did 
not  clearly  fall  within  the  statute,  the  common  law 


Growth  and  Function  3°9 

was  still  in  existence  as  to  such  case,  and  the  doubt 
would  be  thus  disposed  of.  When  at  a  later  period 
statutory  revisions  came  up  for  interpretation,  a 
similar  course  was  adopted  by  the  rule  that  it  was 
to  be  presumed  that  the  revisers  did  not  intend  to 
change  the  pre-existing  law,  but  simply  to  re-enact 
it  in  a  more  suitable  form,  unless  it  appeared  from 
the  revision  that  there  was  a  positive  intent  to  make 
a  change.  These  rules  Professor  Pomeroy  advised 
should  be  adopted  by  the  concurrent  action  of  all 
the  courts  in  the  interpretation  of  the  California  Code. 
Such  advice  would  have  made  Bentham  turn  in  his 
grave,  but  who  of  his  disciples  could  object?  Austin 
has  distinctly  declared  that  the  sole  purpose  of 
codification  was  to  reduce  to  writing  what  was  now 
known  of  law,  and  that  while  the  novel  and  unknown 
cases  of  the  future  could  not  be  governed  by  the 
code,  the  unwritten  law  could  not  govern  them 
because,  ex  hypothesi,  all  that  was  in  the  code.  The 
consequence  he  admitted  to  be  that  there  was  no 
law  in  existence  for  such  cases,  but  he  insisted  that  the 
same  thing  was  true  both  of  a  code  and  the  common 
law;  that  in  either  case  the  decision  must  be  left  to 
the  arbitrium  of  the  judge. 1  I  have  already  quoted 
Mr.  Field's  assertion  to  the  same  effect,  and  I  may 
add  that  if  he  did  not  think  that  there  was  no  exist- 
ing law  for  the  decision  of  future  novel  cases,  he  in- 
tended to  make  it  so,  for  he  introduced  into  his 
proposed  code  a  clause  to  the  effect  that  the  rule 
that  statutes  in  derogation  of  the  common  law 
should  have  no  application  to  the  code!  Now  if  it  be 

Austin,  Lecture  XXXIX,  §§951,  952. 


3io  Law,  Its  Origin 

true,  as  these  distinguished  codifiers  assert,  that  all 
that  is  intended  by  codification  is  to  reduce  to 
writing  only  such  parts  of  the  law  as  are  known,  what 
objection  can  there  be  to  a  statement  of  that  truth 
in  the  code  itself? 

They  would  say,  probably,  that  this  would  do 
neither  good  nor  harm,  that  it  would  not  create  law 
where  none  existed.  If  to  this  the  answer  were 
made  that  the  judges  would  not  think  so,  and  that 
if  the  code  itself  were  made  to  declare  that  it  in- 
tended only  to  reduce  the  law  to  writing  so  far  as 
known  precedents  made  it  possible,  they  would 
experience  no  difficulty  in  finding  a  law  by  which 
to  decide  any  future  case  on  the  facts  being  presented, 
even  if  it  was  up  to  that  time  unknown.  "Yes," 
they  would  say,  "but  their  decision  would  proceed, 
not  from  law,  but  from  their  mere  arbitrium;  they 
would  make  the  law  by  which  they  gave  judgment." 
As  I  have  fallen  into  the  form  of  dialogue,  I  must 
pursue  it  a  little  further. 

Ques.  Do  you  mean  to  say  that  the  judge  in  such 
a  case  follows  no  rule,  but  he  decides  according  to  his 
mere  pleasure  and  under  no  responsibility,  for  if  you 
do,  you  mean  that  he  might  freely  govern  his  deci- 
sion by  tossing  a  coin  and  not  be  held  accountable 
therefor. 

Ans.  Oh,  we  do  not  mean  that.  The  Judge  is  un- 
doubtedly bound  to  make  his  decision  according  to 
all  those  considerations  of  human  experience,  sound 
sense,  custom,  right  reason,  conscience,  equity,  and 
justice  which  lawyers  apply  to  such  cases. 

Ques.  Then  there  are  certain  things  which  exist 


Growth  and  Function  311 

in  the  absence  of  all  law  and  these  things  you  indicate 
by  the  words  human  experience,  sound  sense,  right 
reason,  conscience,  equity,  and  justice ;  now  are  these 
existing  things  really  different  things,  or  one  thing 
expressed  by  the  union  of  all  these  different  words? 

Ans.  You  are  pushing  us  into  rather  more  exact 
definitions  of  words  than  is  usual. 

Ques.  Do  you  mean  that  you  cannot  define  more 
precisely  the  language  you  employ? 

Ans.  No,  we  do  not  mean  that  exactly ;  the  terms 
we  have  employed  may  be  said  to  indicate  the 
various  sources  of  law. 

Ques.  The  judge  then  finds  in  those  sources  of  law 
a  rule  by  which  he  may  decide  the  case,  and  when  he 
finds  it  he  is  bound  to  apply  it.  Is  that  what  you 
mean,  and  is  this  process  the  exercise  by  the  judge 
of  what  you  call  his  arbitrium? 

Ans.  That  is  quite  true. 

Ques.  Now,  when  any  future  similar  case  comes  be- 
fore the  judge  is  he  not  bound  to  apply  the  same  rule  ? 

Ans.  Certainly  he  is. 

Ques.  And  why? 

Ans.  For  the  reason  that  the  rule  has  now  become, 
by  his  decision,  the  law. 

Ques.  Was  anything  added  to  or  taken  from  the 
rule  by  the  judge  when  he  applied  it  in  the  decision 
of  the  case,  or  was  he  under  any  greater  or  other 
obligation  to  apply  it  in  the  decision  of  the  second 
case.than  in  that  of  the  first? 

Ans.  We  admit  that  there  was  nothing  added  to 
or  taken  from  the  rule  and  that  the  obligation  of  the 
judge  was  the  same. 


Law,  Its  Origin 

Ques.  Have  you  not  then,  gentlemen,  admitted 
that  there  is  always  in  existence  a  rule  by  which 
every  controversy  as  it  arises  must  be  decided,  and 
is  this  not  entirely  contrary  to  your  theory  that  there 
is  no  law  for  the  decision  of  future  unknown  cases, 
and  that  the  judge  makes  the  law  for  them  by  an 
exercise  of  pure  arbitrium? 

Ans.  We  prefer  to  leave  that  question  to  be 
answered  by  others. 

It  will  be  perceived  that  this  short  dialogue  really 
brings  out  the  principal  conclusion  which  it  has  been 
my  object  in  these  lectures  to  establish.  It  would 
manifestly,  be  impossible  to  distinguish  and  assign 
to  reason,  sound  sense,  experience,  conscience,  etc., 
the  several  shares  which  they  take  in  the  process  of 
finding  the  rule  of  decision.  One  thing  only  is  done, 
— called  by  whatever  name, — and  that  is  to  consider 
the  consequences  of  conduct  with  the  view  of  finding 
what  conduct  is  on  the  whole,  most  productive  of  the 
equal  happiness  of  all  in  society,  and  inasmuch  as  the 
first  lesson  which  man  in  society  learned  was  that 
the  greater  degree  of  social  happiness  was  produced 
by  a  conformity  to  custom,  the  real  process  becomes 
an  inquiry  as  to  what  is  the  custom.  When  this  is 
found,  it  is  declared  and  enforced,  and  it  is  there- 
fore the  rule  for  the  regulation  of  conduct  which  is 
enforced  by  society,  and  this  is  the  precise  definition 
of  law.  The  one  fundamental  truth  at  the  bottom 
of  all  and  which  more  than  anything  else  is  to  be 
continually  kept  in  mind  is  that  human  conduct 
regulates  itself  by  enforcing  custom;  and  therefore 
that  law,  being  nothing  but  enforced  custom,  is  self- 


Growth  and  Function  313 

existent,  and  cannot  be  made  by  legislation  however 
legislation  may  by  the  subordinate  and  subsidiary 
action  I  have  heretofore  described  aid  and  improve  it. 
But  even  the  advantages  which  Austin  thinks  are 
possible  under  a  system  of  codified  law  can,  in  his 
own  opinion,  be  secured  only  when  the  task  is  ex- 
ecuted by  the  most  competent  and  skilful  hands ; 
and  he  confesses  himself  unable  to  point  to  an 
example  among  all  the  efforts  in  that  direction  which 
have  as  yet  been  made.  I  have  quoted  his  condemn- 
ing the  Prussian  and  French  Codes.  The  only  other 
example  of  an  attempt  at  General  Codification  is 
that  of  Mr.  Field  which  has  been  adopted  in  some  of 
our  States.  I  have  called  attention  to  the  grave 
censure  of  this  by  the  learned  Prof.  Pomeroy  and  to 
this  I  may  add  the  more  thorough  condemnation  of 
Mr.  Amos.  He  says: 

"  The  New  York  Civil  Code  may  be  described  rather  as  a  Cod- 
ification of  Text  books  on  the  English  Common  Law,  than  as  a 
Codification  of  English  Common  Law  itself.  Apart  from 
occasional  scraps  of  terminology  and  arrangement  borrowed 
from  Justinian's  Institutes,  and  the  Code  Napoleon,  the 
whole  Work  reproduces,  in  an  utterly  undigested  form,  the 
notions  and  the  very  phraseology  in  which  the  English  Law 
is  clothed  in  the  most  hastily  compiled  Text  books.  There 
is  scarcely  a  symptom  of  a  single  ambiguous  Term  having 
been  submitted  to  the  crucible  of  logical  criticism,  or  of  a 
complex  notion  having  been  reduced  to  its  component  ele- 
ments with  a  view  to  its  being  introduced  afresh,  under  a 
simpler  guise,  into  the  body  of  the  new  Code.1  " 

The  same  writer,  after  pointing  out  many  fatal 

1  An  English  Code,  p.  99. 


3J4  Law,  Its  Origin 

defects  in  this  attempt  atrcodincation,  thus  concludes 
his  review: 

"  The  above  faults  and  shortcomings  in  the  New  York  Code 
have  been  pointed  out  simply  in  order  to  guard  the  English 
public  and  the  Legal  Profession  against  the  temptation  to 
construct,  under  a  sudden  impulse,  a  worthless  Code.  The 
Code  here  criticised  may  not  be  worthless  for  New  York, 
though  such  an  one  would  be  far  worse  than  no  Code  at  all 
for  this  country.  The  peculiar  state  of  society  in  a  new  and 
undeveloped  country  makes  the  kind  of  demand  very  differ- 
ent there  from  what  it  is  here.  Accessibility  and  verbal  sim- 
plicity in  the  law  may  be  of  far  greater  importance  to  a  rest- 
lessly energetic  and  commercial  community,  than  precision 
and  accuracy  of  expression.  In  England,  on  the  contrary — 
with  its  antiquated  institutions,  so  fondly  cherished  by  the 
mass  of  the  community;  with  its  constitutional  system  so 
repulsive  of  change,  and  so  jealously  as  well  as  tenderly 
watched;  with  its  conservative  sentiment  which  is  strong 
in  politics,  and  all  but  omnipotent  at  the  Bar;  a  Code 
which  in  every  line  of  it  violates  a  familiar  principle,  or  in- 
troduces a  novel  terminology,  and  yet  is  consistent  in  doing 
neither,  would  never  hold  up  its  head  for  so  much  as  the  first 
hour's  debate  upon  its  acceptance  in  the  House  of  Commons. 1 ' ' 

And  yet  this  was  the  work  of  one  of  the  ablest  lawyers 
constructed  after  long  study  aided  by  the  widest 
experience. 

And  finally,  Austin  himself  while  insisting  that  a 
code  is  the  true  pathway  to  an  improved  condition  of 
the  law,  admits  that  the  question  whether  it  would 
be  wise  to  endeavour  to  frame  and  adopt  a  code 
for  any  particular  nation  is  open  to  doubt.  He  says: 

"  But  taking  the  question  in  concrete,  or  with  a  view  to  the 
expediency  of  codification  in  this  or  that  community,  a  doubt 
may  arise.      For  here  we  must  contrast  the  existing  law — 
i  Ibid.,  p.  107. 


Growth  and  Function  315 

not  with  the  beau  id£al  of  possible  codes — but  with  that  par- 
ticular code  which  an  attempt  to  codify  would  then  and 
there  engender.  And  that  particular  and  practical  question, 
as  Heir  von  Savigny  has  rightly  judged,  will  turn  mainly 
on  the  answer  that  must  be  given  to  another:  namely,  Are 
there  men,  then  and  there,  competent  to  the  difficult  task  of 
successful  codification,  of  producing  a  code,  which,  on  the 
whole,  would  more  than  compensate  the  evil  that  must  neces- 
sarily attend  the  change? i " 

Well  may  the  advocates  of  codification  shrink 
from  a  task  which  sheer  presumption  only  would 
assume  when  the  nature  of  it  is  fully  understood; 
for,  disguise  it  as  they  may,  the  task  is  to  frame 
rules  which  the  unknown  conduct  of  the  future  will 
follow  and  obey.  This  necessarily  supposes  that 
the  legislator  can  compel  the  members  of  society  to 
act  with  uniformity  in  obedience  to  his  dictates,  in 
other  words,  that  there  is  or  can  be  a  human  sov- 
ereign able  to  do,  as  Austin  and  Maine  say,  "exactly 
as  he  pleases."  The  attempt,  whenever  made,  will 
prove  as  futile  and  miserable  as  the  effort  of  the 
scenic  artist  to  mimic  the  thunder  of  Jove. 

Demens  qui  nimbos  et  non  imitahile  fulmen 
.  simularet. 

I  dismiss  the  topic  of  codification  with  the  con- 
viction that  so  far  as  it  is  a  scheme  for  the 
conversion  of  the  unwritten  into  written  law  because 
of  a  supposed  superiority  of  the  latter,  it  is  entirely 
inconsistent  with  the  fundamental  principles  of  law. 
The  peculiar  condition  which  has  sometimes  obtained 
and  may  hereafter  obtain,  where  different  political 
societies  with  different  original  customs  are  struggling 

>  Ibid.,  Lecture  XXXIX,  §.  968. 


Law,  Its  Origin 

for  unity  may  justify  a  limited  reduction  of  con- 
flicting usages  by  a  codifying  statute.  But  when 
any  such  attempt  is  made  the  true  nature  of  law 
will  re-assert  itself.  A  judiciary  law  will  grow  up 
around  the  code  and  will  eventually  replace  the 
written  enactment  and  the  law  actually  administered 
will  be  that  which  conforms  to  the  customs  of  men. 

Naturam  expelles  furca,  tamen  usque  recurret. 
Even  under  these  political  conditions,  however, 
general  codification  is  not  necessary.  Time  will, 
itself,  under  the  ordinary  operation  of  social  ten- 
dencies, bring  about  the  desired  uniformity.  The 
consolidation  of  different  states  under  one  nationality 
produces  a  greatly  increased  intercourse  between 
populations  once  foreign  to  each  other,  and  a  con- 
sequent tendency  towards  the  assimilation  of  cus- 
toms. In  the  progress  of  time,  the  differences  will 
by  slow  steps  disappear  through  the  triumph  of  one 
custom  over  another.  The  English  nation  affords 
an  example  of  this  process.  Its  original  elements 
were  drawn  from  both  Anglo-Saxon,  Danish,  and 
Norman  sources,  and  multitudes  of  different  and  in- 
consistent customs  and  laws  were  consequently  to  be 
found  in  the  same  nation;  but  through  the  instru- 
mentality of  greatly  increased  intercourse  between 
the  different  elements  and  the  consequent  tendency 
to  the  adoption  of  the  same  customs,  and  by  the 
steady  and  constant  influence  of  the  King's  Court  in 
favour  of  general  uniformity,  nearly  all  these  original 
differences  have  passed  away  with  the  aid  of  but  little 
in  the  way  of  legislation.  Some  of  the  customs, 
however,  were  so  deeply  seated  in  large  local  prov- 


Growth  and  Function  317 

inces  that  none  of  these  influences  tending  to  uni- 
formity were  powerful  enough  to  change  them,  and 
they  still  remain  and  are  enforced  as  local  customs. 
Of  these  the  custom  of  gavelkind  in  Kent  is  perhaps 
the  most  conspicuous. 

The  conditions  in  France  were  different.  There 
the  separate  provinces  united  under  the  kingdom 
were  much  larger  and  had  been  under  the  dominion 
of  different  established  governments.  The  differing 
customs  were  established  in  territories  sharply 
separated  from  each  other  by  recognised  boundaries, 
and  the  process  of  natural  reduction  to  uniformity 
was  thus  rendered  difficult,  slow,  and  indeed  almost 
impossible.  Many  successive  efforts  in  the  way  of 
legislation  had  been  made  to  abrogate  the  differences. 
I  have  heretofore  alluded  to  the  more  important  of 
these.  The  Revolution  with  its  ideas  of  universal 
freedom  and  equality  was  a  prodigious  impulse 
towards  uniformity,  and  presented  an  opportunity 
which  the  bold  genius  of  Napoleon  was  quick  to 
embrace,  and  thereby  to  establish  the  renown  of  a 
lawgiver.  The  Code  Napoleon  is  an  avowed  attempt 
to  reduce  the  law,  whatever  local  differences  may  be 
exhibited,  to  a  uniform  system  of  written  rules;  but 
in  one  important  particular  it  did  not  conform  to  the 
doctrine  of  Bentham,  nor  to  some  of  the  examples 
framed  by  his  followers,  especially  that  of  Mr.  Field. 
Bentham  would  not  allow  an  appeal  to  any  authority 
save  the  written  rule.  He  would  compel  a  decision 
under  some  precept  of  the  code,  however  inapplicable 
it  might  be,  or  if  this  could  not  be,  he  would  have  a 
case  undecided  and  anarchy  rather  than  judge-made 


Law,  Its  Origin 

law.  Mr.  Field  would  allow  the  existence  and  bind- 
ing force  of  the  common  law  in  a  case  not  provided 
for  by  the  code,  of  course  leaving  the  question 
whether  it  was  provided  for  or  not  as  a  theme  of 
contention  fruitful  in  uncertainty.  The  French  codi- 
fiers  were  wiser.  They  did  not  act  upon  the  arrogant 
notion,  that  they  could  foreknow  the  future,  and  say 
what  groupings  of  fact  would  arise,  and  how  they 
should  be  disposed  of;  and  they  recognised  the  fact 
that  if  cases  should  arise  as  to  which  the  code  was 
silent,  there  was  an  existing  law  by  which  they 
should  be  governed.  The  Fourth  Section  of  the 
Preliminary  Chapter  declared  "A  judge  who  refuses 
to  render  judgment  under  pretence  that  the  law  is 
silent,  obscure  or  insufficient,  may  be  prosecuted  as 
being  guilty  of  denying  justice." 

If  the  view  I  have  supported  be  correct  that  Law 
is  self -created  and  self-existent  and  can  neither  be 
made  nor  abrogated  however  it  may  be,  in  some 
degree,  incidentally  shaped,  enlarged,  and  modified 
by  legislation,  we  should  expect  a  vast  body  of  gloss 
and  comment  under  the  name  of  interpretation, 
gathered  and  gathering  around  the  Code  Napoleon, 
and  indicating  the  methods  by  which  the  resistless 
force  of  conduct  under  the  guidance  of  custom  is 
reconciled  with  the  code,  and  represented  perhaps  as 
being  in  pursuance  of  its  commands.  The  clause  I 
have  just  quoted  enables  this  course  to  be  taken 
without  judicial  embarrassment,  but  it  would  have 
been  taken  all  the  same  if  the  clause  had  not  been 
adopted.  The  fact  is  strikingly  in  accordance  with 
this  expectation.  It  would  be  a  bold  assertion  to 


Growth  and  Function  3*9 

declare  that  the  volume  of  literature  devoted  to  the 
law  in  France  has  in  any  measure  diminished  in  con- 
sequence of  the  code,  and  if  the  learned  author  I 
have  heretofore  quoted  is  a  candid  expert  the  main 
source  of  uncertainty  in  legal  administration  in 
France  is  that  often  much  vaunted  enactment. 

It  is  thus  that  written  law  always  is  and  always 
must  be  treated.  Our  own  Federal  Constitution  is 
an  admirable  specimen  of  written  law.  Its  framers, 
well  knowing  the  folly  of  attempts  to  foresee  the 
future,  confined  themselves  to  large  general  enact- 
ments under  which  any  of  the  policies  which  experi- 
ence in  the  actual  course  of  human  events  should 
advise  might  be  adopted.  If  it  had  been  pointed  out 
to  them  that  under  the  instrument  they  had  framed 
with  a  jealous  care  to  limit  the  central  power,  banks 
could  be  chartered,  railroads  constructed,  seceding 
States  reduced  to  subjection  by  war,  the  privileges 
of  the  mail  service  denied  to  lotteries  in  which  many 
of  the  States  themselves  participated,  and  the 
President  of  the  United  States  exercise  authority  to 
permanently  rule  over  populations  of  millions  in- 
habiting territories  in  distant  seas,  it  would  have 
commanded  the  assent  of  but  a  feeble  minority;  but 
had  they  lived  to  the  present  time  all  or  most  of 
these  successive  extensions  of  Federal  power  might 
have  been  acquiesced  in  by  them  as  authorised  by 
their  own  language. 


LECTURE  XIII 

'"THE  doctrine  which  so  closely  identifies  Law  with 
*  custom  suggests  some  important  questions  bear- 
ing upon  the  subjects  both  of  legal  and  of  social  pro- 
gress and  improvement.  Law,  Custom,  Conduct,  Life 
— different  names  for  almost  the  same  thing — true 
names  for  different  aspects  of  the  same  thing — are 
so  inseparably  blended  together  that  one  cannot 
even  be  thought  of  without  the  other.  No  improve- 
ment can  be  effected  in  one  without  improving  the 
other,  and  no  retrogression  can  take  place  in  one 
without  a  corresponding  decline  in  the  other.  Law 
we  have  found  to  be  based  upon  and  to  be  dependent 
upon  Custom,  and  therefore  we  cannot  materially 
change  Law  without  changing  Custom,  and  to 
change  Custom,  is,  as  we  have  found,  a  thing  beyond 
our  power,  that  is  beyond  our  direct  and  immediate 
power.  Society  cannot,  at  will,  change  its  customs, 
indeed  it  cannot  will  to  change  them.  This  seems, 
at  first  blush,  to  hold  out  but  feeble  encouragement 
to  efforts  for  social  improvement,  and  yet  we  know 
that  improvement  does  take  place  and  we  cannot 
help  thinking  that  the  numerous  forms  of  activity 
having  improvement  for  their  object  do  bring  it  about 
or  aid  in  bringing  it  about.  The  things  which  it  is 

important  for  us  to  know  are  how  far  this  improve- 

320 


Law:  Origin,  Growth,  and  Function      321 

ment  depends  upon  causes  beyond  our  control,  and 
to  what  extent  and  in  what  way  our  conscious  efforts 
may  aid  it. 

Under  the  great  process  of  Evolution,  man  began 
to  advance — to  go  no  further  back — from  his  savage 
condition  to  higher  physical,  moral,  and  intellectual 
levels;  and  this  was  not  by  virtue  of  his  own  conscious 
effort,  but  because  of  the  nature  of  his  original 
constitution  and  the  environment  in  which  he  was 
placed.  The  progress  thus  begun  has  been  carried 
forward  by  designed  effort,  and  it  is  that  effort,  and 
the  rules  which  should  govern  it,  which  most  deserve 
our  attention. 

The  first  great  fact  to  be  kept  in  mind  is  that  man 
will  pursue  what  he  conceives  to  be  his  own  happi- 
ness; the  next,  that  his  only  means  of  knowing  what 
will  bring  that  happiness  is  the  observation  of  the 
consequences  of  his  conduct.  In  this  pursuit  the 
first  great  motives  to  which  he  will  give  indulgence, 
are  the  gratification  of  his  natural  appetites,  and  out 
of  this  grow  the  parental  relation,  the  maintenance 
and  care  of  children  and  the  institution  of  the  family. 

Hail,  wedded  Love!  mysterious  law,  true  source 

Of  human  offspring,  sole  propriety 

In  Paradise  of  all  things  common  else. 

By  thee  adulterous  Lust  was  driven  from  men 

Among  the  bestial  herds  to  range;  by  thee 

Founded  in  reason,  loyal,  just  and  pure, 

Relations  sweet,  and  all  the  charities 

Of  father,  son,  and  brother  first  were  known.1 

The  writer  of  a  recent  interesting  and  very  valuable 

»  Milton's  Paradise  Lost,  Book  IV. 


322  Law,  Its  Origin 

work,  the  benefit  of  which  I  have  enjoyed  during  the 
preparation  of  the  later  of  these  lectures,  makes  the 
entire  progress  of  man  to  consist  in  the  development 
thus  suggested,  the  development  of  what  he  calls 
"the  Moral  Instinct"  beginning  with  the  parental 
relation.1  He  shows  in  great  detail  how  the  in- 
creasing care  of  offspring  leads  to  self-sacrifice  for 
others,  develops  by  degrees  the  kindly  and  generous 
feelings,  how  it  extends  from  the  immediate  family 
to  a  whole  kindred,  thence  successively  to  a  com- 
munity and  a  nation  and  ultimately  to  the  whole 
human  race,  manifesting  itself  in  the  cultivation  of 
the  higher  individual  qualities  and  in  the  improve- 
ment of  society  with  all  its  intellectual  appliances 
and  charities.  I  think  this  account  of  human 
progress  in  the  main  true,  although  sufficient  im- 
portance may  not  be  assigned  by  it  to  the  purely  in- 
tellectual element  in  our  nature,  the  effect  of  that 
being  more  implied  by  the  writer  than  expressed. 
It  is  the  mind  in  man  which  conceives  that  the  greater 
happiness  which  he  finds  in  contributing  to  the 
happiness  of  others  is  caused  by  that  contribution 
and  which  expects  a  still  further  increase  from  an 
extension  of  the  contribution.  It  is  the  mind,  or 
reason,  which  forms  an  abstract  notion  of  the  quality 
resident  in  many  different  things  of  creating  happi- 
ness and  which  it  calls  goodness,  and  which  it  presents 
to  the  will  as  the  means  of  obtaining  its  desire,  and 
this  intellectual  power  is  my  more  particular  concern. 
The  law  may  have  defects  peculiarly  its  own,  and 
these  will  be  found  in  the  administrative  agencies  by 

•  The  Origin  and  Growth  of  the  Moral  Sentiment,  by  John  Sutherland. 


Growth  and  Function  323 

which  the  unwritten  rule  is  ascertained  and  enforced, 
or  in  errors  of  legislation.  The  judicial  tribunals 
may  err  in  declaring  what  the  true  custom  of  society 
is,  or  the  legislature  may  make  an  unwise  attempt 
to  create  law  not  in  harmony  with  custom.  The 
remedy  for  such  evils  lies  in  improving  the  character 
of  the  courts  by  a  better  selection  of  judges  and 
better  training  of  lawyers,  and  in  a  repeal  of  the 
unwise  enactments,  and  a  selection  of  wiser  and 
better  legislators. 

But  if  the  judicial  tribunals  correctly  declare  and 
enforce  custom  all  remaining  social  evils  are  evils 
in  the  customs  and  any  improvement  must  be  sought 
for  in  a  reformation  of  custom  itself,  and  custom 
being  conduct  it  can  be  reformed  or  improved  only  by 
a  reformation  or  improvement  of  conduct.  Conduct, 
however,  being  caused  by  thought,  can  be  changed 
and  improved  only  by  a  change  or  improvement  in 
thought.  Here  we  come  back  to  the  conclusion 
reached  in  an  earlier  lecture  that  all  substantial 
social  reform  must  begin  with  individuals  and  by  a 
change  and  improvement  in  their  thoughts.  The 
legislature  cannot  originate  it,  however  it  may  aid  it, 
and  the  sole  function  of  the  judicial  power  is  to 
preserve  the  peace  of  society  and  leave  its  members 
to  work  out  their  own  happiness  and  that  of  their 
fellows  by  a  free  exercise  of  their  own  powers.  Men 
cannot  be  made  better  by  a  legal  command.  This 
conclusion  is  not  a  new  one.  How  often  have  we 
been  told  from  the  pulpit  and  by  moralists  that 
reform  must  begin  in  individual  life;  but  how  often 
is  the  lesson  forgotten  in  the  multitude  of  legislative 


324  Law,  Its  Origin 

enactments  passed  upon  the  notion  that  they  will 
in  some  manner  execute  themselves,  and  change 
conduct  without  changing  thought!  and  where  a 
reluctant  compliance  is  compelled  by  a  rigorous 
enforcement  of  an  unacceptable  enactment,  we  are 
apt  to  take  the  energy  of  prosecution  as  an  evidence 
of  the  triumph  of  law  and  of  real  progress,  whereas 
it  will  be  quite  as  likely  to  breed  more  than  counter- 
balancing mischiefs  and  drive  us  back  again  to  the 
acknowledgment  that  no  real  advance  is  possible 
except  through  the  slow,  gradual,  unconscious,  but 
willing  change  of  thoughts,  and  consequent  changes 
of  conduct  and  custom.  Quid  legis  sine  moribus  ? 

Accepting  then  the  conclusion  that  progress  and 
improvement  must  in  the  main  begin  and  continue 
in  the  individual  life,  let  us  consider  a  little  more 
closely  the  method  they  must  follow.  Man  seeking,  as 
by  his  nature  he  must,  his  own  happiness,  first  thinks 
to  find  it  in  the  unrestrained  gratification  of  his 
original  appetites  and  tendencies;  but  this  leads  him 
into  conflict  with  his  fellows,  and  brings  upon  him 
the  miseries  and  suffering  always  attendant  upon 
self-indulgence.  He  finds  no  way  of  avoiding  these 
consequences  except  by  self-restraint,  and  he  soon 
begins  to  learn  that  by  postponing  immediate  in- 
dulgence and  enjoyment  he  can  gain  a  larger  and 
wider,  though  more  distant,  good.  These  lessons, 
taught  him  by  his  observation  of  the  consequences  of 
his  conduct,  unite  with  his  affectionate  tendencies 
which  find  their  activity  in  the  formation  of  the 
domestic  relations.  He  not  only  observes  the  con- 
sequences of  his  own  conduct,  but  the  consequences 


Growth  and  Function  325 

of  the  conduct  of  others  and  seeks  by  imitation  to 
gain  the  happiness  which  others  enjoy.  Under  this 
natural  process,  physical  well-being  and  moral  pro- 
gress advance  pan  passu  and  the  whole  company  of 
human  virtues  spring  into  action  and  propagate  their 
influences  in  ever  widening  circles.  This  advance- 
ment is  greatly  stimulated  by  that  co-operation 
which  is  attendant  upon  the  increased  peacefulness 
of  society  and  the  division  of  labour  and  effort. 
Men  co-operate  not  only  to  increase  wealth,  but  to 
enlarge  social,  intellectual,  and  moral  well-being. 
Society  takes  on  a  more  refined  organisation,  the  in- 
stitutions of  government  and  law  are  more  and  more 
perfected,  and  a  multitude  of  agencies  and  facilities 
for  increasing  happiness  and  diminishing  misery  are 
created  by  united  efforts. 

Ethical  writers  conceive  the  main  question  in 
morals  to  be,  What  is  right,  or  What  is  right  conduct? 
I  do  not  mean  to  disparage  the  importance  of  this 
inquiry,  but  I  would  suggest  that  the  progress  I  have 
indicated  has  begun  and  been  carried  forward  to  a 
high  point,  without  an  answer  to  this  question, 
indeed,  without  asking  it.  The  simple  process  has 
been  to  observe  the  consequences  of  conduct  and  to 
adopt  such  action  as  has  seemed  to  be  productive  of 
happiness:  and  we  may  rest  in  confidence  that  those 
lines  of  conduct  which  conduce  to  what  men  in  gen- 
eral feel  to  be  happiness  cannot  be  otherwise  than  in 
accordance  with  the  profoundest  conclusion  con- 
cerning the  ultimate  highest  Good.  The  light  that 
has  steadily  guided  us  over  the  long  pathway  from 
primeval  savagery  into  civilised  society  may  be 


3 26  Law,  Its  Origin 

safely  trusted  during  the  continuance  of  our  journey. 
A  crowning  influence  in  the  improvement  of  con- 
duct comes  from  the  further  intellectual  develop- 
ment. Though  we  may  not  be  able  to  comprehend 
the  cosmical  plan  and  its  ultimate  aim  to  which  all 
else  is  subservient,  we  may  be  able — we  are  able — 
to  conceive  of  something  better  than  we  see.  We 
may  imagine  a  possible  world  fairer  than  the  actual 
one.  As  we  observe  happiness  to  flow  from  different 
lines  of  conduct  and  from  many  different  actions, 
we  abstract  from  them  the  common  quality  which 
is  the  cause  of  the  beneficent  effects  and  give  it  a 
name.  We  thus  form  the  abstract  conceptions  of 
kindness,  gentleness,  truth,  charity,  beauty,  justice, 
liberty,  and  come  to  cherish  these  qualities  for  the 
happiness  they  conduce  to  bring  and  even  to  love 
them  for  their  own  sake.  We  form  ideals  of  conduct, 
as  the  painter  or  the  sculptor  forms  ideals  of  the 
beautiful  in  art,  and  these  ideals  are  something  fairer 
and  better  than  we  observe  in  actual  life. 

"  Where,  where  are  the  forms  the  sculptor's  soul  hath  seized? 
In  him  alone;  can  nature  show  so  fair?  " 

These  ideals  furnish  the  stimulus  which  leads  to 
higher  forms  of  conduct.  They  have  their  home  in 
thought,  the  fountain  and  guide  of  action.  They  are 
first  developed  with  the  more  cultivated  and  en- 
lightened, who  are  looked  up  to  and  imitated,  and 
their  influence  flows  down  through  all  ranks  of  society 
and  manners  and  morals  rise  in  response.  They 
become  the  themes  of  literature  and  the  inspiration 
of  art.  They  create  the  qualities  we  admire  in  the 


Growth  and  Function  327 

hero,  the  patriot,  and  the  philanthropist.  They 
are  offended  by  everything  low  and  mean,  and  grati- 
fied by  the  display  of  every  virtue. 

How  is  the  improvement  thus  produced  in  conduct 
reflected  or  reproduced  in  the  law?  That  it  must  be 
so  reproduced  is  certain  for  it  by  degrees  becomes 
customary  and  custom  is  law.  But  the  principal 
agencies  are  manifest.  The  first  and  most  import- 
ant is  that  of  the  judicial  tribunals.  The  judges 
are  both  by  appointment  and  tradition  the  experts 
in  ascertaining  and  declaring  the  customs  of  life. 
As  the  higher  forms  of  conduct  become  customary 
they  pervade  all  social  and  business  life.  Con- 
formity with  them  is  mutually  expected  by  the 
parties  to  all  transactions,  and  if  disputes  arise  it  is 
because  this  expectation  has  been  disappointed,  and 
it  is  the  office  of  the  judge  to  declare  and  enforce  the 
fair  expectation.  But  the  expert  is  also  an  exemplar 
and  teacher.  The  judges  are  the  most  enlightened  of 
all.  The  study  of  justice  leads  to  the  love  of  justice, 
and  thus  they  are  the  first  to  recognise  and  sanction 
the  improving  customs  of  life.  Here  is  the  process 
by  which  the  unwritten  private  law  recognises  the 
advance  in  morals  and  manners  and  affixes  upon 
advancing  forms  of  custom  the  authenticating  stamp 
of  public  approval.  There  is  no  head  or  topic  in  the 
law  in  which  this  process  is  not  observable.  Take, 
for  instance,  the  law  of  sale.  An  early  rule  imposed 
upon  the  buyer  the  risk  of  loss  arising  from  any 
failure  of  the  thing  bought  to  conform  to  his  expecta- 
tion. An  improved  sense  of  fairness  led  honest  men 
to  disclose  defects  known  to  them  but  not  apparent 


328  Law,  Its  Origin 

to  ordinary  observation.  This  disclosure  became  so 
far  customary  that  purchasers  relied  upon  it  and  the 
courts  recognised  the  custom  and  made  compliance 
with  it  obligatory.  Manufactured  articles  are  bought 
and  sold  by  a  certain  description  and  if  they  conform 
to  that  description  the  obligation  of  the  seller  is 
complied  with;  but  where  the  product  of  a  manu- 
facturer is  bought  under  the  same  description  there 
has  come  to  be  an  expectation  that  the  product  will 
possess  certain  qualities,  and  the  custom  has  arisen 
for  manufacturers  to  take  care  that  the  process  of 
manufacture  shall  secure  such  qualities.  This  cus- 
tom has  been  recognised  by  the  courts  and  made 
obligatory,  so  that  the  manufacturer  may  be  com- 
pelled to  answer  in  damages  in  case  of  defects  in  the 
product  caused  by  the  want  of  the  customary  care. 
In  similar  ways  the  law  of  contracts  has  been  ex- 
panded so  as  to  be  made  to  conform  to  the  fair  ex- 
pectations attendant  upon  business  transactions 
among  the  most  honourable  men.  The  jurisdiction 
which  courts  of  equity  exercise  is  marked  by  a  like 
development  in  the  obligations  of  truth  and  honesty 
which  are  enforced.  The  duties  originally  imposed 
upon  actual  and  recognised  trustees  are  extended 
to  cases  in  which  any  trust  or  confidence  has  come 
to  exist  in  whatever  way,  and  also  to  cases  in  which 
one  person  has  acquired  a  power  over  the  property 
or  pecuniary  interests  of  another  which  he  may  exer- 
cise to  his  own  advantage,  and  the  detriment  of  such 
other,  and  fictions  are  indulged  in,  implications  and 
presumptions  made,  in  order  to  enforce  under  ordinary 
legal  forms  rights  and  obligations  which  spring  out 


Growth  and  Function  329 

of  new  customs.  In  short,  it  is  the  function  of  the 
judges  to  watchfully  observe  the  developing  moral 
thought,  and  catch  the  indications  of  improvement 
in  customary  conduct,  and  enlarge  and  refine  cor- 
respondingly the  legal  rules.  In  this  way,  step  by 
step,  the  great  fabrics  of  common  law  and  equity  law 
have  been  built  up  without  the  aid  of  legislation 
and  the  process  is  still  going  on.1 

1  I  borrow  here  the  well  chosen  language  of  a  very  able  and  very 
temperate  writer,  who  felt  that  this  consideration  called  for  a  sur- 
render of  the  advantages  which  at  one  time  he  believed  codification 
might  furnish.  I  refer  to  the  late  J.  A.  Dixon,  a  distinguished  lawyer 
of  Glasgow:  "This  slow  and  gradual  evolution  or  spontaneous 
growth  from  judicial  decision,  and  the  slow  operation  of  custom  in  de- 
termining organic  changes  in  all  the  departments  of  the  law,  explains 
how  it  is  that  there  is  a  continuous  process  of  refinement  going  on  in  the 
Common  Law  of  a  country  in  all  ages.  As  institutions  undergo  a  silent 
modification ;  as  morality  progresses ;  as  new  needs  and  new  modes  of 
satisfying  needs  come  to  the  surface,  and  as  the  countervailing  facts 
of  new  modes  of  fraud,  oppression,  and  of  crime  also  present  themselves, 
a  demand  for  suitable  laws  or  modifications  applicable  to  the  ever  new 
circumstances  makes  itself  felt  on  every  side,  and  is  instinctively 
responded  to  by  judges,  at  once  the  sharers  and  regulators  of  public 
sentiment.  The  change  in  laws  so  brought  about  is  so  exceedingly 
minute  from  day  to  day,  that  it  will  only  be  noticed  by  comparing 
classes  of  decisions  made  at  tolerably  long  intervals  of  time,  on  the 
same  states  of  fact,  and  when  no  positive  legislation  has  intervened. 
Take  a  volume  of  Morison's  Dictionary  and  look  through  it  from  this 
point  of  view  and  you  cannot  fail  to  be  struck  with  the  evidences  of  this 
slow  but  incessant  process  of  organic  change.  You  see  whole  sections 
of  law  silently  transformed,  you  see  new  regions  arising  and  others 
disappearing,  not  by  violent  revolutions,  but  by  the  astonishing 
operation  of  some  slowly-working  causes,  whose  existence  becomes 
visible,  and  whose  effects  are  to  be  measured  only  by  generations 
or  centuries — like  the  stupendous  geological  changes — that  con- 
tinuous formation  and  destruction  of  strata — the  submersion  of 
ancient  continents — the  upheaval  of  new — not  by  cataclysms  and 
earthquakes,  but  as  the  result  of  forces  which  are  in  active  operation 
around  us  day  by  day,  and  which  produce  so  little  disturbance  that 
their  very  existence  is  unperceived  till  we  contemplate  their  vast 
results  over  epochs  and  aeons  of  time. 


33°  Law,  Its  Origin 

The  scientific  character  of  this  process  should  be 
noted.  The  truths  that  man  seeks  his  own  substan- 
tial happiness,  that  he  is  taught  what  conduct  to 
pursue  by  observing  the  consequences  of  previous 
conduct,  and  that  what  he  has  once  observed  to 
happen  he  expects  will  happen  again  under  like 
circumstances  are  original  and  inherent  in  his  consti- 
tution and  are  acted  upon  long  before  he  reaches  the 
abstract  conception  of  them,  and  consciously  em- 
ploys them.  The  progress  he  makes,  therefore,  by 
unconscious  action  upon  these  truths  is  in  a  just 

"  What  has  been  the  great  factor  in  the  creation  of  the  Mercantile 
Law?  Not  legislative  intervention:  our  Mercantile  Law  has  been 
the  product  almost  entirely  of  custom  and  judicial  decision,  and  in  the 
various  stages  of  its  history  it  has  moulded  and  adjusted  itself  with 
the  most  remarkable  sensitiveness  to  the  progress  of  commerce  and 
civilisation.  The  progress  in  this  particular  department  of  law  is 
perhaps  nowhere  better  observed  than  in  such  a  book  as  Mr.  Lang- 
dell's  collection  of  Cases  on  Contracts  from  the  earliest  period  of  Eng- 
lish Law  down  to  the  present  day.  Another  great  region  or  tract  of 
law  which  has  undergone  in  a  very  remarkable  manner  this  process 
of  silent  and  imperceptible  change,  is  the  whole  region  of  doctrines 
pertaining  to  Trusts  and  Fraud — the  prominent  matters  of  equity 
jurisdiction  in  England.  The  whole  doctrines  of  equity,  both  as 
avowedly  administered  in  the  equity  courts,  and  as  they  have  in  a  less 
obtrusive  way  crept  into  and  pervaded  the  decisions  of  the  Courts 
of  Common  Law,  all  these  doctrines  have  involved  themselves  into  the 
state  of  high  moral  refinement  in  which  they  at  present  exist,  not 
so  much  by  the  special  moral  elevation  of  particular  judges,  as  by 
the  concurrent  onward  impetus  of  the  whole  community,  which  all  the 
judges  have  shared  and  felt  the  influence  of.  The  history  of  the 
analogous  Praetorian  jurisdiction,  and  of  the  Praetorian  doctrines  in 
Roman  law,  is  another  instance — particularly  in  questions  of  bond 
fides,  culpa,  dolus,  fidei  commissa,  of  the  same  process  by  which  the 
unwritten  law  of  a  country  absorbs  into  itself  the  whole  gradual  re- 
finement and  elevation  of  advancing  civilisation : — how,  with  the  general 
advance  in  moral  sensitiveness  on  the  part  of  the  community,  there 
comes  a  demand  in  matters  of  contract  and  ownership,  and  legal 
duty,  for  fine  and  still  finer  shades  of  faithfulness,  for  absolute  purity 
of  intention,  for  the  repression  of  all  indirectness  of  aim  and  duplicity 


Growth  and  Function  331 

sense  scientific,  although  not  consciously  so.  The 
great  general  rule  governing  human  action  at  the 
beginning,  namely  that  it  must  conform  to  fair 
expectation  is  still  the  scientific  rule.  All  the  forms 
of  conduct  complying  with  this  rule  are  consistent 
with  each  other  and  become  the  recognised  customs. 
All  those  inconsistent  with  it  are  stigmatised  as  bad 
practices.  The  body  of  custom  therefore,  tends 
from  the  beginning  to  become  a  harmonious  system. 
When  the  ascertainment  and  administration  of  cus- 
tom are  committed  in  enlightened  society  to  learned 

of  purpose,  for  what  has  been  called  a  superior  refinement  of  moral 
scrutiny  into  the  duties  which  the  law  will  enforce,  the  negligences 
which  it  will  punish,  the  frauds  which  it  will  defeat.  The  Praetorian 
Jurisprudence  and  the  Equity  Law  of  England  developed  themselves 
under  widely  different  auspices,  and  I  think  the  growth  of  both  sys- 
tems in  gradual  niceness  and  delicacy  of  perception  of  the  subtlest 
shades  of  legal  and  moral  distinctions,  is  a  proof  that  an  unfettered, 
unwritten  law  grows  with  a  nation's  growth,  and  refines  itself  with 
the  national  refinement.  The  writings  of  the  Roman  lawyers  and  the 
history  of  English  Equity  jurisdiction  alike  exhibit  the  exquisite  ac- 
curacy and  balanced  moderation  with  which,  in  the  hands  of  com- 
petent lawyers,  an  unwritten  law  succeeds  in  doing,  by  the  slow  process 
of  adjustment  and  refinement  of  which  I  have  been  speaking,  what 
no  legislative  effort  ever  could  accomplish — I  mean  the  work  of  reducing 
into  scientific  form,  of  fixing,  circumscribing,  limiting,  getting  into 
practical  shape  as  instruments  of  justice,  the  apparently  indefinite 
and  indefinable  principles  of  morality — of  seizing,  appropriating,  and 
applying,  day  by  day,  and  year  by  year,  the  insensible  increment  and 
product  of  the  deepening  moral  sense  and  conscience  of  the  nation. 
This  is  what  Savigny  means  when  he  says,  in  his  remarkable  Treatise 
on  the  Vocation  of  our  Age  for  Legislation,  that  the  largest  portion 
of  the  unwritten  Law  of  every  nation  is  the  exact  product  and  measure 
of  the  national  character  and  temper — a  reflex  of  its  life  and  progress. 
This  also  explains  the  immense  importance,  even  in  the  case  of  a 
codified  law,  of  not  overlooking  the  difference  between  a  process  of 
codification  that  has  gone  on,  as  that  of  France,  simultaneously,  as 
it  were,  with  the  development  of  the  law,  and  a  Code  to  be  framed 
at  one  stroke,  and  made  absolute  and  final,  such  as  ours  might  be. — " 
— Journal  of  Jurisprudence,  1874,  p.  312  et  seq. 


Law,  Its  Origin 

judges,  who  are  men  of  science,  improvement  becomes 
more  rapid  and  certain,  but  the  process  is  the  same. 
The  means  employed  by  the  judge  to  determine  the 
character  of  any  piece  of  social  conduct,  as  being  legal 
or  illegal,  is,  wherever  there  is  no  fit  and  acknow- 
ledged precedent  to  guide,  to  do  precisely  the  same 
thing  which  primeval  man  did:  observe  the  con- 
sequences of  the  conduct  in  question  and  approve  or 
condemn  it  according  as  it  appears  to  be  or  not  to 
be  in  accordance  with  fair  expectation.  Nothing  is 
more  common  than  the  practice  of  learned  judges 
to  say  in  rejecting  some  rule  urged  as  being  the  law, 
that  business  could  not  be  conducted  as  it  actually 
is  conducted  if  that  were  the  rule.  This  is  saying 
that  the  suggested  rule  does  not  conform  to  the  fair 
expectation.  Learned  judges  recognise  the  fact  that 
all  legal  rules  under  whatever  head  of  the  law  they 
belong  must  be  consistent  with  each  other,  and  this 
can  be  only  when  they  are  in  accordance  with  fair 
expectation.  Here  is  one  of  the  chief  methods  of 
correcting  and  improving  the  law.  Some  particular 
act  the  legality  of  which  is  challenged  may  have 
occurred  in  many  different  transactions  and  thus 
have  been  considered  under  many  different  heads  in 
the  law,  and  have  been  sometimes  regarded  as 
innocent,  sometimes  as  immaterial,  and  sometimes 
condemned.  The  judge  compares  the  various  group- 
ings of  fact  in  which  the  act  is  found  and  learns  when 
it  is  permissible  and  when  otherwise,  and  by  this 
refining  process  numerous  different  rules  are  framed, 
-all  forming  parts  of  a  harmonious  scientific  system. 
I  am  not  aware  that  learned  judges  have  ever 


Growth  and  Function  33$ 

explicitly  avowed  that  their  determinations  as  to  the 
legal  character  of  novel  forms  of  conduct  were  gov- 
erned by  the  consideration  of  what  was  in  accordance 
with  fair  expectation,  but  I  think  there  can  be  no 
doubt  that  such  is  the  fact,  indeed,  how  is  it  possible 
to  determine  the  character  of  conduct  except  by  a 
regard  to  its  consequences  and  if  these  consequences 
are  such  as  fair-minded  men  in  general  would  expect, 
the  conduct  must  be  approved,  and  if  otherwise,  must 
be  condemned. 

This  identity  between  the  scientific  rule  upon 
which  legal  tribunals  act  in  determining  the  law  with 
the  one  which  the  unlearned  man  naturally  employs 
in  determining  upon  his  own  conduct  is  the  element, 
characteristic  of  the  unwritten  law,  which  creates  in 
us  the  feeling  that  it  is  just  and  right.  We  are  so 
incessantly  asking  and  deciding  every  day,  or  rather 
every  hour,  what  conduct  is  expected  of  us  that  we 
complete  the  process  instantaneously,  and  decision- 
seems  like  an  immediate  recognition  of  a  truth, 
rather  than  what  it  really  is,  an  inference.  It  is  this 
which  moved  the  classic  jurists  of  Rome  to  declare 
the  law  to  be  self-existent,  and  identical  with  the 
right  reason  of  Supreme  Jove. 

The  other  chief  agency  in  the  reform  and  improve- 
ment of  the  law  is  legislation.  As  has  been  shown, 
society  cannot  make  law  at  will,  the  great  causes 
which  create  law  being  self -operative;  but  it  can  aid 
in  the  process  and  give  completed  form  to  changes 
which  are  pressing  for  recognition.  Its  office  is  a 
supplementary  one  to  that  of  the  judges,  designed 
to  accomplish  a  work  for  which  the  judicial  power 


334  Law,  Its  Origin 

is  unfitted.  The  characteristic  of  custom  is  uni- 
formity, and  it  is  instinctive  in  the  judge  to  pro- 
nounce the  law  the  same  to-day  as  yesterday.  He 
hesitates  ever  to  say  that  a  change  has  taken  place, 
even  when  one  has  in  fact  taken  place.  The  great 
changes  in  custom  relating  to  the  treatment  of 
married  women  received,  and  could  only  receive,  a 
tardy  recognition  from  the  courts;  but  the  legis- 
lative power,  absolute  in  form,  however  limited  in 
fact,  can  easily  and  with  effect  enact  a  change  already 
existing  or  coming  into  existence  in  custom.  Pro- 
perty was  from  the  first  recognised  in  all  valuable 
things  which  were  limited  in  quantity  and  susceptible 
of  appropriation;  but  this  limitation  led  to  a  definition 
which  excluded  the  immaterial  products  of  the  in- 
tellect: but  the  principal  reason  which  lay  at  the 
foundation  of  the  custom  of  acknowledging  private 
property  in  anything  was  that  society  cannot  have 
a  supply  of  those  things  which  are  the  product  of 
human  labour  or  abstention  without  conferring  upon 
the  producer  the  rights  of  property  in  the  fruits  of 
this  labour,  and  this  equally  applied  to  the  products, 
if  we  may  call  them  so,  of  the  mind.  The  courts 
could  not  well  change  their  definitions;  but  the 
legislature  could  easily  and  with  effect  extend  to 
these  fruits  of  intellectual  industry  the  rights  of 
property  by  enacting  a  patent  law.  The  same  pro- 
gress has  led  to  the  bestowal  upon  authors  of  the  right 
of  property  in  literary  works,  through  copyright 
legislation,  and  a  further  extension  of  the  same 
privilege  by  one  country  to  the  citizens  of  an- 
other, by  appropriate  treaties — a  form  of  inter- 


Growth  and  Function  335 

national   legislation — is  likely  to  come  in  the   near 
future. 

Nowhere  is  the  advance  in  morals  and  intelligence 
more  manifest  than  in  the  criminal  law.  The  harsh 
treatment  of  untried  prisoners,  the  denial  of  counsel 
for  prisoners  upon  trial,  the  practical  taking  of 
accusation  as  evidence  of  guilt  have  given  way  to 
just  and  even  indulgent  methods  which  never  permit 
the  punishment  of  the  innocent.  A  great  part  of 
this  improvement  has  been  effected  or  made  possible 
by  means  of  legislation. 

But  the  largest  field  for  the  employment  of  the 
conscious  agency  of  society  in  the  improvement  of 
the  law  is  to  be  found  in  the  multiplied  forms  of  legis- 
lation which  a  highly  developed  industrial  life 
demands.  When  we  consider  the  enormous  mass 
of  apparently  necessary  legislation  found  in  modern 
societies,  we  are  almost  led  to  doubt  the  soundness 
of  the  maxim  that  the  best  government  is  that  which 
governs  least,  as  well  as  the  soundness  of  the  teaching 
that  the  sole  function  of  government  and  of  law  is  to 
secure  to  every  man  the  largest  possible  freedom 
of  individual  action  consistent  with  the  preservation 
of  the  like  liberty  for  every  other  man;  but  while 
these  maxims  are  permanently  and  everywhere  true, 
the  actual  amount  of  government  control  varies 
according  to  social  conditions.  In  rural  communities 
with  their  sparse  populations  engaged  almost  entirely 
in  agricultural  pursuits  comparatively  little  legis- 
lative interference  with  the  conduct  of  life  is  needed. 
A  simple  organisation  of  the  civil  power  under 
officers  such  as  sheriffs  and  constables,  a  suitable 


336  Law,  Its  Origin 

provision  of  judicial  tribunals  for  the  determination 
of  civil  disputes  and  the  punishment  of  crime,  simple 
provisions  for  the  maintenance  of  roads  and  bridges, 
schools,  poor-houses,  and  jails  are  all  that  is  neces- 
sary. But  the  division  of  employments  attendant 
upon  advancing  civilisation  and  the  consequent 
increase  of  co-operation,  and  crowded  populations 
in  cities,  towns,  and  villages,  present  very  different 
conditions.  Men  touch  each  other  in  a  vastly  greater 
number  of  ways  and  may  consequently  the  more 
encroach  upon  and  abridge  the  individual  liberty  of 
each  other.  These  encroachments  if  left  to  the 
natural  mode  of  redress,  would  involve  continual 
strife.  Moreover  such  populations  have  many  com- 
mon additional  needs  to  which  all  must  contribute. 
Streets,  pavements,  sewers,  light,  police  must  be 
provided  for  and  these  require  many  laws  and  regu- 
lations. Banking,  insurance,  and  other  methods  of 
business  co-operation  are  demanded;  but  these  would, 
through  the  fraud  or  neglect  of  those  entrusted  with 
the  management,  be  perverted  to  the  injury  of  the  ig- 
norant or  unskilful,  unless  a  system  of  government 
supervision  were  maintained.  Additional  and  more 
complex  legislation  is  therefore  demanded  as  society 
advances,  but  the  principles  which  should  guide  that 
legislation  and  determine  its  amount  remain  the 
same.  Where  is  the  line  to  be  drawn  beyond  which 
compulsory  laws  should  not  be  permitted  to  pass? 
What  are  the  maxims  which  should  reconcile  liberty 
and  restraint?  There  is  no  clearly  perceivable  line 
which  enables  us  in  every  case  to  clearly  determine 
how  far  society  may  go  in  limiting  and  directing 


Growth  and  Function  337 

individual  conduct.  It  changes  with  the  changing 
conditions  of  life.  But  there  is  a  guide  which,  when 
kept  clearly  and  constantly  in  view,  sufficiently  in- 
forms us  what  we  should  aim  to  do  by  legislation 
and  what  should  be  left  to  other  agencies.  This  is 
what  I  have  so  often  insisted  upon  as  the  sole  function 
both  of  law  and  legislation,  namely,  to  secure  to 
each  individual  the  utmost  liberty  which  he  can 
enjoy  consistently  with  the  preservation  of  the  like 
liberty  to  all  others.  Liberty,  the  first  of  blessings, 
the  aspiration  of  every  human  soul,  is  the  supreme 
object.  Every  abridgment  of  it  demands  an  excuse, 
and  the  only  good  excuse  is  the  necessity  of  preserv- 
ing it.  Whatever  tends  to  preserve  this  is  right, 
all  else  is  wrong.  To  leave  each  man  to  work  out  in 
freedom  his  own  happiness  or  misery,  to  stand  or  fall 
by  the  consequences  of  his  own  conduct,  is  the  true 
method  of  human  discipline.  For  myself  I  reject 
that  view  of  the  cosmical  scheme  which  would  regard 
society  as  the  unit  for  the  well-being  of  which  our 
efforts  should  be  immediately  directed,  even  though 
individual  happiness  and  perfection  were  thereby 
sacrificed.  The  society  most  perfect,  as  a  whole, 
will  be  that  alone  which  is  composed  of  the  most 
perfect  and  happy  individuals. 

Here  then  is  the  field  of  effort  for  the  improvement 
at  once  of  law  and  society.  It  is  a  strictly  scientific 
field.  It  is  the  field  in  which  the  great  laws  of  moral- 
ity have  their  play  and  in  which  they  are  to  be 
studied  as  those  other  laws  of  nature  which  are 
supreme  in  the  physical  world.  Writers  on  law  have 
frequently  felt  obliged  to  point  out  what  they  deemed 

22 


S38  Law,  Its  Origin 

to  be  an  error  in  the  common  expression  the  laws 
of  nature,  and  to  say  that  it  was  only  by  a  not  very 
appropriate  metaphor  that  the  great  principles  which 
govern  the  phenomena  of  the  physical  world  should 
be  called  by  the  same  name  which  is  used  to  describe 
the  rules  of  conduct;  but  the  resemblances  are  more 
striking  than  the  differences.  In  each  case  the 
phenomena  obey  original  self-existing  and  unchange- 
able rules  alike  entitled  to  the  designation  of  laws. 

All  are  but  parts  of  one  stupendous  whole, 
Whose  body  Nature  is,  and  God  the  soul. 

There  is  a  Science  of  Human  Conduct  which  em- 
braces the  kindred  sciences  of  law  and  legislation. 
To  study  the  science  of  the  unwritten  law,  to  develop 
and  apply  its  great  principles  is  the  work  of  every 
lawyer  who  aims  to  perfectly  qualify  himself  for  both 
the  private  and  public  duties  which  belong  to  his 
vocation,  and  it  is  no  less  his  work  to  study  the 
science  of  legislation  and  learn  the  ways  in  which 
man  by  conscious  effort  can  furnish  aid  to  the 
silently  operating  forces  which  are  working  for  the 
good  of  mankind. 

These  views  have  a  significant  bearing  upon  the 
subject  of  Legal  Education  upon  which  I  can  bestow 
only  a  passing  glance.  They  at  once  approve  as 
correct  the  method  of  teaching  now  long  established 
in  the  Law  School  of  this  University.  The  law  being 
the  science  of  conduct  of  men  in  their  relations  and 
dealings  with  each  other,  the  facts  of  that  conduct, 
that  is,  human  transactions  of  every  description  are 
the  arena  of  fact  which  that  science  embraces.  The 


Growth  and  Function  339 

multitude  of  cases  which  have  been  adjudicated  and 
reported  are  but  the  records  of  conduct,  and  the 
diligent  study  of  them  and  of  the  numberless  similar- 
ities and  differences  which  they  exhibit  will  disclose 
the  landmarks  which  reason  has  followed  in  its 
search  for  the  true  rules.  These  volumes,  however, 
are  but  a  part  of  the  great  territory  of  fact  which  it 
is  the  business  of  the  lawyer  and  jurist  to  explore. 
Life  itself  is  a  moving  spectacle  of  numberless  forms 
of  conduct  the  study  of  which  is  necessary  to  the  full 
equipment  of  the  lawyer  or  the  judge.  They  are 
the  accredited  and  traditional  experts  in  the  great 
game  of  social  life,  and  must  carefully  watch  that 
game.  Herein  we  find  the  reason  why  lawyers  of 
sound  practical  sense  and  knowledge  of  affairs  so 
often  acquit  themselves  both  at  the  Bar  and  on  the 
Bench  better  than  others  who  may  be  much  more 
accomplished  in  the  learning  of  books.  They  have 
been  studying  diligently  and  to  good  purpose  the 
facts  of  human  conduct  as  they  are  displayed  in  the 
great  book  of  life.  The  actual  methods  and  systems 
of  trade,  commerce,  and  finance  embrace  great 
realms  of  fact  in  which  legal  principles  lie  implicit 
and  disclose  themselves  to  careful  investigation. 
All  the  actions  of  men — quidquid  agunt  homines — 
are  the  proper  theme  of  the  lawyer's  study.  And 
then  too  there  is  the  internal  world,  the  realm  of 
consciousness,  equally  necessary  to  be  studied  and 
equally  fruitful  in  results,  for  it  is  here  that  the  secret 
springs,  the  real  causes  of  all  conduct  are  discerned. 
I  do  not  disparage  the  learning  of  books.  We  find 
in  them  not  only  a  great  storehouse  of  the  facts  of 


340  Law,  Its  Origin 

human  conduct,  but  the  thoughts  and  workings  of 
the  great  minds  which  in  the  past  have  made  those 
facts  a  study.  We  learn  the  rules  and  principles 
which  have  governed  human  conduct  through  ages 
of  the  past,  and  are  made  the  more  certain  that  they 
will  continue  to  guide  it  in  the  future.  Nor  is  the 
study  of  literature  other  than  that  of  the  law  to  be 
neglected.  In  History  we  find  the  record  of  the 
great  events  which  concern  nations,  the  conflicts, 
not  between  individuals,  but  those  larger  ones  which 
no  pleadings  can  contain  and  no  court  adjudicate, 
but  which  are  still  examples  of  conduct  full  of  in- 
struction for  the  jurist,  the  legislator,  and  the  states- 
man. Poetry  also  has  the  highest  uses.  It  is  here 
that  we  find  our  loftiest  ideals  of  conduct.  The 
Roman  Horace  says  to  a  friend  that  he  had  been 
reading  over  again  at  his  leisure  in  Praeneste  the 
poems  of  Homer,  who  taught  him  the  lessons  of  moral 
wisdom — quid  sit  rectum,  quid  turpe,  quid  utile, 
quid  non,  better  than  those  renowned  philosophers, 
Chrysippus  and  Grantor. 

There  is  another  subject  upon  which  the  legal 
theories  I  have  sought  to  maintain  have  an  important 
bearing,  that  of  politics.  I  have  had  occasion  to 
point  out  that  the  functions  of  law  and  government 
are  closely  allied  to  each  other.  Law  is  indeed,  one 
of  the  departments  of  government,  that  one  which 
reveals,  or  frames  the  rules  which  the  executive  arm, 
the  arm  of  power,  is  to  enforce.  What  then  is  the 
best  form  of  government?  With  us  it  is  almost  held 
to  be  treason  to  ask  the  question;  but  let  us  not  be 
too  confident.  A  wise  and  witty  poet  tells  us  with 


Growth  and  Function  341 

truth,  "Whate'er  is  best  administered  is  best." 
What  that  government  is,  be  it  an  absolute  mon- 
archy, an  aristocracy,  a  plutocracy,  an  oligarchy,  or 
a  democracy,  which  secures  to  the  citizen  the  largest 
measure  of  individual  liberty  of  action,  the  right  to 
freely  work  out  his  own  destiny,  at  no  peril  save 
that  arising  from  the  natural  consequences  of  his  own 
conduct,  is  the  best,  for  that  particular  society.  The 
first  necessary  condition  of  any  society  is  peace,  and 
this  must  be  secured  at  all  hazards.  If  it  can  be  had 
only  under  the  rule  of  a  despot  at  the  head  of  armed 
men,  that  government  is  the  best,  for  it  is  the  only 
possible  one;  but  it  is  a  tyranny.  It  is  the  reign 
not  of  Order,  but  of  Force.  The  domination  of  an 
oligarchy  may  be  no  better,  for  it  is  still  a  tyranny, 
but  that  may  be  the  best  for  the  particular  society. 
But  be  it  ever  remembered  that  whoever  has  power 
over  his  fellow-men  will  use  it  in  part  at  least  for  his 
own  purposes,  and  the  misery  he  thus  brings  upon 
those  beneath  him  is  the  ordered  penalty  inflicted 
upon  those  who  fail  to  prove  themselves  worthy  of 
liberty.  Nor  does  the  oligarch  wholly  fail  to  render 
a  public  service.  The  feudal  baron  asserted  posses- 
sion over  all  the  land,  compelled  his  serfs  and 
retainers  to  cultivate  the  soil,  took  from  them  the 
whole  product  of  their  labour  save  enough  to  support 
life,  and  compelled  them  to  shed  their  blood  in  his  pri- 
vate quarrels;  but  he  defended  them  against  all  other 
injury  and  secured  for  them  no  inconsiderable  amount 
of  peace  and  happiness.  And  what  would  have  been 
the  result,  had  he  anticipated  the  justice  and  charity 
of  Howard,  and  measured  out  to  every  toiler  the 


342  Law,  Its  Origin 

full  product  of  his  industry?  It  would  have  been, 
there  is  much  reason  to  think,  expended  in  riot  and 
debauchery  with  nothing  left  to  support  life  for 
the  making  of  another  harvest.  Many  complain — 
none  more  than  I — of  schemes,  such  as  protective 
tariffs,  bounties,  and  subsidies,  by  which  a  government 
confers  favours  upon  classes  of  persons  which  it 
cannot  confer  upon  all  alike  and  by  which  the  greater 
part  of  the  burdens  of  taxation  are  shifted  to  the 
shoulders  less  able  to  bear  them;  but  I  should  be 
staggered  for  an  answer  if  I  were  asked  whether,  on 
the  whole,  the  result  were  not,  at  least  in  an  economic 
sense,  to  place  the  surplus  income  of  society  in  the 
hands  of  the  best  custodians — whether,  if  it  were  all 
divided  with  strict  regard  to  supposed  justice  among 
those  who  contributed  to  produce  it,  it  would  not, 
to  a  prodigious  degree,  be  wasted,  and  misspent,  to 
the  injury  not  only  of  society,  as  a  whole,  but  to  a 
vast  number  of  the  individuals  among  whom  the 
distribution  was  made.  When  the  workman  has 
learned  to  exercise  that  self-restraint  which  will  enable 
him  to  make  a  good  use  of  the  entire  product  of  his 
labour,  he  will  have  acquired  at  the  same  time  the 
intelligence  and  the  courage  which  will  enable  him 
to  win  it.  Perhaps  he  does  not  sooner  deserve  it. 
Absolute  equality  among  men,  however  necessary  we 
may  deem  it  in  our  political  systems,  and  however 
properly  we  may  cherish  it,  is  not  regarded  in  the 
order  of  nature  as  the  supreme  good. 

These  reflections  teach  us  that  government  is  not 
an  independent  instrumentality,  based  upon  original 
conceptions  of  right  and  justice  for  making  men 


Growth  and  Function  343 

virtuous,  prosperous,  and  happy,  and  equally  appli- 
cable to  all  conditions  of  society.  It  is  not  primarily 
a  cause,  but  an  effect.  It  is  that  form  of  public 
authority  which  naturally  comes  into  existence 
because  it  is  the  only  form  which  will  secure  peace 
and  something  like  order  among  the  people  over 
which  it  extends.  There  is,  therefore,  no  form  of 
government  which  is  best  for  all  political  societies. 
Each  one  has  its  own  merits.  I  have  said  that  gov- 
ernment was  not  primarily  the  cause  of  the  advance- 
ment of  society  in  virtue  and  well-being,  but  I  am 
far  from  thinking  that  it  has  no  effect  in  this  direc- 
tion. We  have  heretofore  seen  how  social  progress 
is  the  result  of  action  and  re-action,  among  many 
influences  and  that  government  which  best  preserves 
internal  peace  and  order  indirectly  aids  in  promoting 
all  those  social  utilities  which  are  the  fruits  of  peace 
and  order. 

We  cannot,  therefore,  answer  the  question  what 
form  of  government  is  best  without  knowing  the 
society  over  which  it  is  to  be  established;  but  as  the 
function  of  Government  is  the  same  as  that  of  Law — 
to  mark  out  the  line  within  which  each  individual 
can  freely  act  without  encroaching  upon  the  like 
freedom  in  others,  we  can  say  that  the  best  govern- 
ment is  that  which  best  performs  this  sole  function. 
The  best  societies,  that  is,  those  composed  of  the  best 
individuals,  will,  of  necessity,  have  a  government 
which  for  that  reason,  we  call  best,  and  therefore, 
the  best  and  truest  ideal  government  is  that  of  the 
best  society.  This  ideal  is  best  represented  by  a 
representative  Democracy,  for  in  that  is  found  the 


344  Law,  Its  Origin 

largest  measure  of  individual  liberty,  and  this,  after 
peace  is  secured,  is  the  first  of  human  blessings. 

The  views  I  have  presented  have  also  an  important 
bearing  upon  the  question  how  far,  in  a  democracy, 
the  powers  of  government  should  rest  with  the  central 
authority  and  how  far  they  should  be  dispersed 
among  the  extremities.  The  cardinal  test  is  the 
same.  Which  policy  will  secure  the  best  perform- 
ance of  the  function  of  Law  and  Government,  that 
is,  to  maintain,  first,  peace,  and  next,  individual 
liberty?  Where  the  localities  are  able  to  perform 
the  duties  of  local  government  the  power  should 
be  lodged  with  them,  and  no  occasional  or  partial 
failures  constitute  a  sufficient  warrant  for  taking  it 
away;  but  there  may  be  a  local  population  so  inca- 
pable as  to  be  absolutely  unable  to  perform  the 
office  of  self-government,  in  which  case  the  power 
should  be  withheld. 

I  have  now  completed  the  inquiries  which  were 
my  object  in  composing  these  lectures,  and  stated 
some  of  the  important  consequences  which  seem  to 
me  to  flow  from  the  conclusions  I  have  endeavoured 
to  establish.  I  am  almost  painfully  conscious  how 
imperfect  the  treatment  has  been,  but  I  shall 
be  more  than  satisfied  if  I  have  succeeded  in  im- 
parting clearer  and  more  just  conceptions  than  have 
heretofore  been  held  of  the  true  nature  of  Law 
and  of  Legislation,  and  of  the  respective  provinces 
of  each.  I  hope,  at  least,  that  I  have  done  something 
to  convince  my  hearers,  that  while  Legislation  is  a 
command  of  the  Sovereign,  the  unwritten  Law  is  not 
a  command  at  all;  that  it  is  not  the  dictate  of  Force 


Growth  and  Function  345 

but  an  emanation  from  Order;  that  it  is  that  form 
of  conduct  which  social  action  necessarily  exhibits, 
something  which  men  can  neither  enact  nor  repeal, 
and  which  advances  and  becomes  perfect  pari  passu 
with  the  advance  and  improvement  of  society. 
Every  human  action  has  unvarying  consequences, 
which  will  be  repeated,  ceteris  paribus,  whenever  the 
action  is  repeated.  To  study  these  consequences 
and  to  follow  the  teaching  they  impart  is  the  great 
duty  of  life.  To  arrange  those  acts  which  are  social 
in  their  nature  in  their  true  order,  and  under  their 
proper  classes  is  the  work  of  the  complementary 
sciences  of  Ethics  and  the  Law. 


Index 


Abrogation  of    private  law  does 
not    occur    after    conquest    of 
country,  85  /. 
Alaric    orders  a  compilement  of 

the  Theodosian  Code,  93  /. 
Alderson,    B.,   on  negligence,    76 
Alemanni,  code  of  the,  93 ;  law  of 

the,  96 

Alfred,  the  laws  of,  45,  61,  99 
American    law  in  Louisiana,  304 
Ames,  F.,  on  justice,  162 
Amos,  S.,  on  the  Code  Napoleon, 
303;  on  the  code  of  New  York, 
313  /.;  on  the  codes  of  India, 

3°7 

Anglo-Saxons,  customs  of  the,  97 
Anti-Trust  Act,  the,  209  ff. 
Apuleian  enactments,  the,  232 
Arbitration,     among   early     Ger- 
mans, 53;  the  origin  of,  47  /. 
Aryan    communities,    the    early, 

described  by  Maine,  198  /. 
Assize,  of  Clarendon  (1166),  the, 
63,  1 06;  of  Novel  Disseisin,  the, 

63 

Athens,  early  legislation  in,  33  ff. 

Austin,  J.,  cited,  299;  on  codes, 
313;  of  France  and  Prussia, 
303  /.;  definition  of  law  by, 
agrees  with  canon  law,  103; 
of  positive  law  by,  7  /.;  on  the 
expediency  of  codification,  314 
/.;  on  the  lack  of  definitions 
in  the  French  code,  305;  on 
the  purpose  of  codification, 
309;  theory  of  law  by,  181  /., 
218,  268;  of  sovereignty  by,  14, 

193  ff;  315 


B 


Banking  department,  the  creation 
of  a,  is  not  law,  234 


Barbaric  man,  the  social  condi- 
tions of,  1 6  -ff. 

Battle,  judicial  trial  by,  the 
origin  of,  47 

Bentham,  J.,  on  the  authority  of 
codes,  317  /.;  on  the  common 
law,  266  ff.;  definition  of  law 
by,  7 ;  on  the  ethics  of  govern- 
ment, 222  ff.;  theory  of  juris- 
prudence by,  235,  265  ff.;  of  law 
by,  180  /.,  217  /. 

Blackstone,  W.,  definition  of  law 
by,  8;  on  the  digest  of  laws 
made  by  Alfred,  99;  on  the 
dominance  of  custom  in  gov- 
erning conduct,  32;  on  early 
laws  in  England,  60  /.;  on  the 
functions  of  judges,  78  /.;  on 
the  law  of  nature,  n,  174 

Brehons,  the,  referees  in  disputes, 
51  ff.;  the  laws  of  the,  52  /. 

Brooke,  J.,  on  compensation  for 
murder  among  the  Dyaks,  44; 
on  custom  among  the  Dyaks,  2 1 

Browne,  T.,  on  the  nature  of  God, 

175 
Burgundians,  code  of  the,  93 


Caesar  describes  the  Druids,  5 1 

California,  the  code  of,  307  ff. 

Canon  law,  the,  101  ff. 

Capitularies  issued  by  Charle- 
magne and  others,  109 

Carlisle,  the  statute  of  (1309),  107 

Carlyle,  T.,  on  Bentham's  ethics 
of  government,  222 

Chancellor,  the  assumption  of 
judicial  functions  by  the,  64 

Charlemagne  issues  Capitularies, 
109 

Charter,  of  the  Forest  (1217),  the, 

105;     the     Great,     see      Magna 

Ctiarta. 


347 


348 


Index 


Cherry,  R.  R.,  on  payments  for 
crime  among  early  peoples,  45 

Cicero,  calls  law  "right  reason," 
74;  definitions  of  law  by,  4  f.; 
on  the  law  of  nature,  10,  174; 
on  the  unwritten  law,  231  f. 

Civil,  codes,  117  /.;  law,  the,  in 
Louisiana,  305 

Clarendon,  the  Assize  of  (1166), 
63,  1 06;  the  Constitutions  of 
(1164),  105  /. 

Classes,  conflicts  of,  260  ff. 

Code,  of  the  Alemanni,  the,  93; 
of  the  Burgundians,  the,  93 ;  of 
California,  the,  307  ff.;  the 
Gregorian,  294;  the  Hermo- 
genian,  294;  of  Justinian,  the, 
103,  286  ff.,  296  f.;of  Louisiana, 
the,  304  /.;  Napole'on,  the,  257, 
317  /.;  borrowed  by  the  code  of 
Louisiana,  304 ;  embodies  ordon- 
nances  of  Louis  XIV.  and 
XV.,  112 ;  the,  in  France,  302  ff.; 
of  New  York,  the,  313  f.;  of 
the  Ostrogoths,  the,  93;  of 
Prussia,  the,  301  f.;  Austin  on 
the,  304;  of  the  Salian  Franks, 
the,  92;  the  Theodosian,  93  f., 
294;  of  the  Visigoths,  the,  93 

Codes,  of  barbarians  gradually 
sank  into  desuetude,  94 ;  of  bar- 
barian conquerors  of  Western 
Europe,  88  ff.;  civil,  117  f.; 
in  India,  306  ff. 

Codification,  263  ff.;  Austin,  on 
the  expediency  of,  314;  on  the 
purpose  of,  309;  justifiable 
where  there  is  conflict  of  cus- 
toms, 315  ff.;  of.  law,  204 

Coke,  E.,  on  the  wisdom  of  the 
law,  128 

Common  law,  Bentham  on  the, 
266  ff.;  resorted  to,  in  Cal- 
ifornia, 307 ;  in  Louisiana,  304  /. 

Common  Pleas,  the  Court  of,  the 
origin  of,  63 

Concealment  in  insurance  law, 
7o  ff. 

Conduct,  the  causes  of,  118  /., 
122  ff.;  controlled  by  custom, 
138  ff.;  division  of  the  field  of, 
1 68  /.;  the  improvement  of, 
323  ff.;  law,  rules  for  the  reg- 
ulation of,  14  f.;  the  nature  of, 
167  ff.;  in  pastoral  state,  21  f.; 
the  regulation  of,  in  early 


democracies,  27  ff.;  in  early 
monarchies,  24  /.;  in  primitive 
society,  15  f.;  restraints  upon, 
in  barbaric  society,  18  ff.;  same 
as  law,  custom,  life,  320  /.;  the 
science  of,  338 

Conflicts  between  the  codes  of  the 
barbarians  and  the  Roman  law 
of  the  provinces,  93 

Conscience,  conflict  of,  with  cus- 
tom, 141;  defined,  151  /.;  the 
governor  of  conduct,  165  f. 

Constitution,  of  an  American 
State,  1 16 ;  the  Federal,  of  U.  S., 

3*9 

Constitutions,  of  Clarendon,  the 
(1164),  105  /.;  of  the  later 
Emperors,  294 

Contracts,  the  beginnings  of,  30  /.; 
Langdell  on,  330;  the  law  of, 
328  f. 

Controversies,  in  California,  307; 
on  written  and  unwritten  law 
in  England,  New  York,  and 
Massachusetts,  284 

Copyright,  the  law  of,  334  f. 

Corpus  Juris,  Canonici,  103; 
Civilis,  103 

Coulanges,  F.  de,  on  the  legis- 
lators among  the  ancients,  49 

Court,  baron,  the,  57 ;  of  the  coun- 
ty, the,  57;  of  the  hundred, 
the,  54,  57 ;  the  influence  of  the 
King's,  in  favour  of  uniform- 
ity, 316 

Courts,  in  England  in  early  times, 
57  /.;  of  England  and  U.  S.,  the, 
66  ff.;  of  justice,  the  establish- 
ment of,  157  /.;  the  origin  of, 
48;  the  origin  of,  in  Western 
Europe,  50  /. 

Coutumes  in  early  France,  109  /. 

Crime,  definition  of,  241  if.;  pay- 
ments for,  in  early  times,  42  ff. 

Criminal  law,  the,  241  ff.;  defined 
by  Hadley,  297 ;  development  of 
the,  335 

Curtius,  E.,  on  Athens  in  time  of 
Solon,  34 

Custom,  the  authority  of,  in  early 
democracies,  2  7  f ;  in  early  mon- 
archies, 24  /.;  in  early  tribes, 
40;  the  change  of,  257  ff.;  con- 
flicts of,  with  legislation,  204 
ff.;  conflicts  of,  in  time  of 
Solon,  34  f.;  the  enforcement  of 


Index 


349 


compliance  with,  among  the 
Australians,  19;  the  establish- 
ment of,  19  /.;  furnishes  rules 
governing  conduct,  118  ft.; 
law  in  courts  in  England  in 
early  times,  59  /.;  the  nature  of, 
122  ff.;  necessity  of  obeying, 
233;  not  necessarily  law,  120; 
particular,  80  /.;  among  pas- 
toral people,  22;  a  restraint 
upon  conduct  in  barbaric  so- 
ciety, 1  8  ff.;  same  as  law,  con- 
duct, life,  320  /.;  a  source  of 
law,  120  ff.;  supreme  in  de- 
termining conduct,  158  ff.; 
universally  known,  77  /.;  the 
violation  of,  wrong  conduct, 
241  ff. 

D 

Danish  law  in  England,  6  1 
Decisions  of  judges,  the,  310  ff. 
Decretals,  the,  in  canon  law,  103 
Decretum,  the,  in  canon  law,  103 
Deeds  as  title  to  land,  75 
Definitions,    in    codes    are    dan- 
gerous, 306;  necessary  in  codes, 

3°5 
Democracies,  the  beginnings  of, 

26  ff. 
Demosthenes,   definition    of    law 

by,  6  /. 
Dernburg,   H.,   definition  of  law 

by,  8 
Despotism   of  the   Sikhs  in   the 

Punjab,  the,  196  ff. 
Digest  of  Justinian,  the,  288  /., 

297  ff;  3°6 

Digests,  118 

Disputes,   the  causes  of,   among 

early  tribes,  40  /.;  the  settle- 

ment of,   among  early  tribes, 

4i  ff. 
Dixon,  J.  A.,  on  the  evolution  of 

the  common  law,  329  ff. 
Donis  conditionalibus,  the  enact- 

ment de,  107 
Draco,  the  code  of,  33 
Druids,  excommunication  by  the, 

52;  the  judges  in  all  disputes, 


E 


Edgar  begins  digest  of  laws,  61 
Edict,  the  perpetual,  by  Salvius 
Julianus,  298 


Edicts,  the,  of  the  Roman  prae- 
tors, 290  /. 

Education,  legal,  338  ff. 

Edward,  the  Confessor,  digest  of 
laws  by,  61  /.;  I.,  the  legislation 
of,  1 06  f. 

Emptores,  the  statute  Quia,  107 

Enforcement  of  law,  the,  79  /. 

England,  conflict  of  customs  in, 
316  /.;  controversies  on  written 
and  unwritten  law  in,  284;  the 
differences  of  customs  in,  made 
uniform  by  legislation,  256; 
the  history,  of  judicial  tribunals 
in,  55  ff.;  of  legislation  in,  98 
ff.,  104  ff.;  the  impossibility  of 
making  code  for,  314 

English  common  law  resorted  to 
in  Louisiana,  304  /. 

Engrossing,  the  practise  of,  205 

Equity  law,  development  of  the, 

33°  /• 

Ethics,  137  ff.;  of  government, 
the,  Bentham's  theory  of, 
222  ff. 

Euric   orders   the   national    cus- 
toms of  the  Visigoths  to  be  re- 
duced to  writing,  94 
Evidence,  the  law  of,  65 
Evolution  of  man,  the,  321 
Exchequer,    the    origin    of    the 

Court  of  the,  63 
Excommunication  by  the  Druids, 

^52/- 

Extravagantes,  the,  in  canon  law, 

103 


Family,  the  unit  of  society  in 
early  times,  29  /. 

Feudalism  in  England,  56  /. 

Field,  D.  D.,  on  the  authority  of 
codes,  317  /.;  cited,  302,  309; 
on  the  code  of  Justinian,  287; 
proposes  a  system  of  codifica- 
tion, 264,  270  ff.,  313 

Force  is  to  become  supreme  over 
Order,  200  ff. 

Forest,  Charter  of  the  (1217),  105 

Forestalling,  the  practice  of,  205 

Fortescue,  J.,  cited,  79 

France,  codes  in,  302  ff.,  331; 
conflict  of  customs  in,  302  /., 
317  /.;  the  history  of  legislation 
in,  109  ff. 


350 


Index 


Franks,  Salian,  code  of  the,  92 
Fraud,  law  regarding,  330 
Frauds,  the  statute  of,  257,  281 
Frederick     the    Great    begins    a 

code  for  Prussia,  301 
French  law  in  Louisiana,  304 


Gaius    preserves  for  us  the  legis 

actio  sacramenti,  50 
Galton,   F.,  on  the  payment  for 

murder    among   the   Damaras, 

43  /• 

Gavelkind  in  Kent,  317 
Gellius,  A.,  on  the  unwritten  law, 

61 
Germany,  the  administration  of 

justice  among  the  early  tribes 

of,  53  f->  the  codes  of,  257;  the 

early  tribes  of,  described,  26  ff.; 

history  of  legislation  in,  112  /.; 

society  among  the  early  tribes 

of,  39  ff- 

Gesetzbuch,  the,  of  Prussia,  301 
Gibbon,  E.,  on  the  judicial  trial 

by  battle,   47;  on  the   Koran, 

283;  on  the  revision  of  the  Code 

of  Justinian,   300;   on   Roman 

jurisprudence,  292  ff. 
Government,     the     adoption     of 

organised,    170   f.;   Bentham's 

theory  of  the  ethics  of,  222  ff.; 

the  best  form  of,  340  ff.;  the 

function  of,  253  f.,  342  ff. 
Great    Charter,    the,    see   Magna 

Charta. 
Green,  J.  R.,  on  the  Great  Charter 

of  1215, 100 

Gregorian  code,  the,  294 
Guinnard,  A.,  on  the  payment  for 

murder  among  the  Patagonians, 

44 


II 


Hadley,  J.,  on  the  Code  of  Jus- 
tinian in  later  ages,  300;  on  the 
Digest  and  the  Code  of  Justin- 
ian, 297 

Hamilton,  A.,  cited,  166 

Hamilton,  W.,  quotes  Herodotus 
on  custom,  161;  relates  anec- 
dote of  Malebranche,  149 

Happiness,  "  our  being's  end  and 
aim,"  132 


Henry  I.,  the  usages  of,  em- 
bodied in  the  Constitutions  of 
Clarendon,  105 

Hermogenian  Code,  the,  294 

Herodotus  on  custom,  161 

History,  the  study  of,  necessary 
for  the  lawyer,  340 

Hobbes,  T.,  definition  of  law  by, 
7;  theory  of  law  by,  179  f. 

Holland,  T.  E.,  collects  definitions 
of  law,  4  ff.;  definition  of  law 
by,  8  /. 

Homer  cited  for  money  payment 
for  crimes,  42 

Hooker,  R.,  definition  of  law  by,  5 

Horace  on  the  value  of  the  study 
of  Homer,  340 

Hoveden,  Roger,  on  Edward  the 
Confessor's  digest  of  laws,  61  /. 


India,  codes  in,  306  ff. 
Inheritance,  the  English  law  of, 

256 
Institutes  of  Justinian,  the,  288, 

297 
Insurance,   the   law  of,    case   in, 

70  f.;  marine,  law  of,  271  ff., 

276  ff. 
Interstate    Commerce    Law,  the, 

207 

Irish  laws,  the  ancient,  51 
Italy,  the  history  of  legislation  in, 


Judges,  the  decisions  of,  310  ff.; 
the  first,  3 1 ;  the  functions  of, 
78f. 

Judicial  trial  by  battle,  the  origin 
of,  47 

Judicial  tribunals,  the  establish- 
ment of,  31  f.,  38  /.,  170  /.;  the 
history  of,  in  England,  55  ff.; 
the  improvement  of,  327  ff.; 
the  origin  of,  48 

Jurisconsults,  the  Roman,  291  /. 

Jurisprudence,  the  science  of 
legal  justice,  156 

Jury,  trial  by,  64  /. 

Jus,  rights  actually  enforced  by 
law,  156;  civile,  the,  177;  gen- 
tium, the,  177  /.;  the  founda- 


Index 


35i 


tion  of,  lies  in  the  law  of  Nature, 
10 

Justice,  administration  of,  in  early 
democracies,  27  /.;  among  the 
early  Germans,  53  f.;  in  early 
monarchies,  25;  definition  of, 
155  ff.;  the  following  of  custom, 
160  ff.;  a  relative  virtue,  162  ff. 

Justices,  itinerant,  appointment 
of,  62  /. 

Justinian,  the  Code  of,  103,  286  ff., 
296  /.;  the  Digest  of,  288  /.,  297 
ff.,  306;  the  fate  of  the  work  of, 
300  /.;  the  Institutes  of,  288, 
297;  the  Pandects  of,  98,  103, 
117,  288  /.,  300  /.;  the  work  of, 
296  ff. 

K 

Kant,  I.,  definition  of  law  by,  5, 

J34 

King,  the,  in  England  in  early 
times,  56 

King's,  Bench,  origin  of  the  Court 
of  the,  63;  Court,  the,  58; 
growth  of  the,  63;  the  in- 
fluence of,  in  favour  of  uni- 
formity, 316;  peace,  breach  of, 
regarded  as  a  crime,  243 

Koenigswarter,  L.  J.,  on  pay- 
ments for  crime  among  ancient 
peoples,  42,  45 

Koran,  the,  a  codification  of 
Mahometan  law,  283 


Land,  the  distribution  of,  among 
the  Anglo-Saxons  in  England, 

55  f- 

Landrecht,  the,  of  Prussia,  301 
Langdell,  C.  C.,  on  contracts,  330 
Law,  of  the  Alemanni,  the,  96; 
American,  in  Louisiana,  304; 
the  authority  of,  based  on 
Force,  12  /.;  the  authority  of, 
based  on  rule  of  absolute  Right, 
9  /.;  beginnings  of,  133  /.;  body 
of  rules  for  regulation  of  con- 
duct, 14  /.;  the  Canon,  101  ff.; 
the  civil,  in  Louisiana,  305; 
common,  the  evolution  of  the, 
329  ff.;  common,  resorted  to, 
in  California,  307;  in  Louisiana, 
304  /.;  of  contracts,  the,  328 
/.;  of  copyright,  the,  334  /.; 


the  criminal,  241  ff.,  297,  335; 
is  custom,  120;  Danish,  in 
England,  61;  the  defects  of 
the,  322  f.;  definitions  of,  4 
•ff.,  134;  the  enforcement  of,  79 
/.;  equity,  the  development 
of  the,  330  /.;  of  evidence, 
the,  65;  of  fraud,  the,  330; 
French,  in  Louisiana,  304;  the 
function  of,  131  /.,  135,  343  f.; 
improvement  of  the,  demanded 
by  a  highly  developed  industrial 
life,  335  ff.;  legislation  an  aid 
to  the  improvement  of  the 
333  ff->  °f  inheritance,  the, 
256;  of  insurance,  the,  70  f., 
271  ff.,  276  ff.;  Mahometan,  the 
Koran  a  codification  of,  283; 
the  nature  of,  129  ff.;  of  Nature, 
the,  4  ff.,  9  jf.,  10  /.,  121,  174, 
176  /.;  of  negligence,  244  f.; 
novel  cases  in,  191  ff.;  the  pa- 
tent, 334;  personal,  of  the 
barbarians,  the,  92,  95  /.;  the 
philosophy  of,  i  ff.;  positive, 
defined,  6  ff.;  private,  68,  297; 
the  abrogation  of  private,  does 
not  occur  after  conquest  of 
country,  85  f.;  private  dis- 
tinguished from  public,  234  ff., 
263  f.;  the  influence  of  legis- 
lation on  private,  small,  118, 
254  ff.;  of  procedure,  the,  not 
created  by  custom,  238  f.; 
public,  263  f.,  297;  public, 
formerly  conterminous  with 
legislation,  115;  the  making  of 
public,  by  legislation,  171;  the 
function  of  public,  253  /.;  of 
the  rights  of  married  women, 
the,  259;  Roman,  not  abrogated 
by  barbarians,  91;  Roman, 
the  sources  and  growth  of, 
289  ff.;  rules  for  regulation  of 
conduct,  14  /.;  of  sale,  the, 
327  /.;  the  Salic,  93,  96;  same 
as  custom,  conduct,  life,  320  /.; 
the  source  and  the  authority 
of,  4*/jF./  Spanish,  in  Louisiana, 
304 ;  statutory,  definitions  of,  7 ; 
the  study  of,  i  ff.,  128 /./ter- 
ritorial and  personal,  in  Roman 
Empire  after  its  conquest  by 
barbarians,  92;  the  theory  of, 
i°3.  r73  f->  179  /-.  180  f.,  187  ff., 
218  ff.,  224  ff.,  266  ff.;  of  trusts, 


352 


Index 


Law, — continued. 

the,  330;  uncertainty  in,  274  ff., 
280  ff .;  the  unwritten,  61, 
23X  f->  33 1'>  *ne  written,  vic- 
torious upon  paper  and  power- 
less elsewhere,  213  /. 
Lawgivers,  49 

Laws,  of  Alfred,  the,  45,  61,  99;  of 
the  barbarians,  the,  45  /.,  96;  of 
the  Brehons,  the,  52  /.;  Edgar 
begins  digest  of,  6 1 ;  of  Ed- 
ward the  Confessor,  the,  61  f.; 
of  England,  early,  60  /.;  of  the 
Franks,  the,  93  /.;  Irish,  the,  an- 
cient, 51;  of  the  Mercians,  the, 
61;  prohibitory,  205  f.,  247  ff.; 
of  Solon,  the,  32  ff.,  42,  88,  261 ; 
sumptuary,  247  ff.;  of  the 
Visigoths,  the,  93  /.,  113  f.;  of 
the  West  Saxons,  the,  61 
Lee,  G.  C.,  on  French  legislation, 
112;  on  German  legislation, 
113;  on  the  Great  Charter  of 
1215,  100 

Legal  education,  338  ff. 
Legis  Actio  Sacramenti,  50 
Legislation,  an  aid  to  improve- 
ment of  the  law,  333  ff.;  of  any 
American  State  described,  115 
•ff.;  assists  in  making  customs 
of  different  communities  of 
same  state  uniform,  255  ff.; 
conflicts  of,  with  customs,  204 
•ff.;  definition  of,  given  by 
Austin,  182;  the  development 
of,  200  f.;  earliest  instances  in 
which  writing  was  employed 
for  purposes  of,  32  ff.;  its  first 
employment  the  making  of 
public  law,  171;  in  former  ages 
conterminous  with  public  law, 
115;  the  function  of,  202  ff.,  253 
f.;  the  influence  of,  upon  private 
law  small,  118;  the  present 
condition  of,  3  /.;  the  province 
of,  135,  221  ff.,  233  ff.;  in 
regard  to  private  law,  254  ff.; 
source  of  rules  for  regulation  of 
conduct,  86  ff.;  the  uses  of, 
228  /.,  233  ff.;  the  will  of  the 
State,  229  ff. 
Libel,  the  difference  between 

slander  and,  243 

Liberty,  the  first  condition  of 
happiness,  133  ff.;  the  supreme 
object  of  legislation,  337 


Life,  itself  the  supreme  desire, 
132;  the  proper  theme  of  the 
lawyer's  study,  338  ff.;  same 
as  law,  custom,  conduct,  320  /. 

Limitations,  the  statute  of,  201;, 
282  f. 

Livian  enactments,  the,  232 

Louis  XIV.  issues  ordonnances, 
no  /. 

Louis  XV.  compiles  ordonnances, 
in  /. 

Louisiana,  the  code  of,  304  f. 

Lubbock,  J.,  on  customs  of  sav- 
ages, 21 

Lycurgus,  no  lawgiver,  49 


M 


Macaulay,  T.  B.,  on  Bentham's 
theory  of  jurisprudence,  219 

Mac  Chombaich,  P.,  on  the  Code 
of  Justinian,  288 

Magna  Charta,  65,  98,  100 

Mahometan  law,  the  Koran  a 
codification  of,  283 

Maine,  H.  S.,  on  Austin's  theory 
of  law,  218  ff.;  cited,  13;  on 
correspondence  betweenDruids 
and  Brehons,  51;  describes  the 
legis  actio  sacramenti,  50;  on  the 
despotism  of  Runjeet  Singh  in 
the  Punjab,  196  ff.;  on  the 
development  of  sovereignty, 
199  /.;  on  the  early  Aryan  com- 
munities, 198  /.;  on  excom- 
munication by  the  Druids,  52  f.; 
on  sovereignty,  193  ff.,  315; 
theory  of  the  nature  of  law  by, 

i8;f. 

Maitland,   F.  W.,  see  Pollock,  F. 
Malebranche,   M.,   on  pursuit  of 

truth,  149 
Marine  insurance,  law  of,  271  ff., 

276  ff. 
Massachusetts,    controversies    on 

written  and  unwritten  law  in, 

284 

Mercians,  laws  of  the,  61 
Merton,  the  statute  of  (1236),  106 
Mill,  J.,  accepts  Bentham's  theory 

of  jurisprudence,  268 
Mill,    J.    S.,    accepts    Bentham's 

theory  of  jurisprudence,  268 
Milton,  J.,  cited,  321 
Monarchies,  beginnings  of,  23  /. 


Index 


353 


Montesquieu,  C.  de  S.,  description 
of  the  laws  of  the  Franks  and  of 
the  Visigoths  by,  93  f. 

"Moral,  instinct,"  the,  Sutherland 
on  the  development  of,  322; 
sense  in  conscience,  152;  senti- 
ment, the  development  of  the, 
126 

Morality,  137  ff. 

Morgan,  L.  H.,  on  payment  for 
murder  among  Iroquois,  43 

Morison's  dictionary    referred  to, 

329 

Moses  no  lawgiver,  49 
Motives,  guides  of  conduct,  146  f. 
Murder,    payments    for,     among 

early  tribes,  42  ff. 
Must,  the  difference  between  the 

words  ought  and,  164  ff. 

N 

Napole'on  forms  code  for  France, 

3  °a  ff- 
Napole'on,  the  Code,  257,  317  /.; 

borrowed  by  code  of  Louisiana, 

304;    embodies  ordonnances  of 

Louis  XIV.  and  XV.,  112 
Negligence,   denned,   76;  law  of, 

244  /. 
New  York,  the  civil  code  of,  313  /.  ; 

controversies    on    written    and 

unwritten  law  in,  284 
Niebuhr,  B.  G.,  on  lawgivers  in 

ancient  times,  49 
Northern  Securities  decision,  the, 

213 

Notes,  promissory,  75  /. 
Novel  cases  in  law,  191  ff. 
Novel  Disseisin,  Assize  of,  63 
Novels  of  Justinian,  the,  103 


Ordonnances  of  Louis  XIV.,  no  /.; 
of  Louis  XV.,  in  f. 

Ostrogoths,  code  of  the,  93 ;  main- 
tained, for  a  time,  their  own 
customs  in  Italy,  113 

Ought,  the  difference  between  the 
words  must  and,  164  ff.;  the 
sense  of,  153  ff. 


Pandects   of  Justinian,    the,    98, 
103,  117,  288  /.,  300  /. 
23 


Pascal,  B.,  on  justice,  160 

Pastoral  state,  conduct  in,  21  f. 

Patent  law,  the,  334 

Payments  in  early  times  in  ex- 
piation of  crimes,  42  ff. 

Peace  the  first  necessary  condi- 
tion of  society,  341 

Peace,  the  King's,  breach  of,  re- 
garded as  a  crime,  243 

Pentateuch,  the,  cited  for  com- 
pounding crimes  by  money, 

43 

Personal  law  of  the  barbarians, 
the,  92,  95  /. 

Pindar  calls  custom  the  queen  of 
the  world,  161 

Plutarch  relates  anecdote  of 
Solon,  49 

Poetry,  the  study  of,  useful  to  the 
lawyer,  340 

Pollock,  F.,  unable  to  give  defini- 
tion of  law,  9 

Pollock,  F.,  and  Maitland,  F.  W., 
on  the  laws  of  the  barbarians, 
96;  on  Great  Charter  of  1215, 
100 

Pomeroy,  J.  N.,  censures  codes, 
313;  on  the  code  of  California, 
308 /. 

Positive  law  defined,  6  ff. 

Pramunire,  the  statute  of  (1355), 
107 

PrcBtor,  the,  an  arbitrator  in 
disputes,  50;  peregrinus,  the, 
i77;the  Roman,  290 /.;  urbanus, 
the,  177 

Praetorian  jurisdiction,  the,  his- 
tory of,  330 

Precedent,  is  authenticated  cus- 
tom, 65 ;  the  decisions  of  judicial 
tribunals,  170  /.;  reasons  for 
judgments,  68  /. 

Primitive  society,  the  conditions 
of,  1 6  ff.;  conduct  and  its  reg- 
ulation in,  15  f. 

Principle,  decisions  on,  72  ff. 

Private  law,  68;  abrogation  of, 
does  not  occur  after  conquest 
of  country,  85  /.;  changes  in, 
fall  within  province  of  public 
law,  118;  defined  by  Hadley, 
297;  distinguished  from  public 
law,  234  ff.,  263  /.;  the  influence 
of  legislation  upon,  small,  118; 
in  legislation,  117;  legislation  in 
regard  to,  254  ff. 


354 


Index 


Procedure,  beginnings  of,  30  /.; 
the  law  of,  not  created  by 
custom,  238  f. 

Procopius  on  Justinian's  revision 
of  the  code,  300 

Prohibitory  laws,  205  f.,  247  ff. 

Prussia,  Austin  on  the  code  of, 
304;  codes  in,  301  /.;  conflict  of 
customs  in,  301  f. 

Public  highways,  customs  regard- 
ing the,  206  ff. 

Public  law,  68 ;  defined  by  Hadley, 
297;  distinguished  from  private 
law,  234  jf.,  263  /.;  formerly 
conterminous  with  legislation, 
115;  the  function  of,  253  /.;  the 
making  of,  171 


R 


Railroads,  customs  regarding  and 
legislation  concerning,  206  ff. 

Ranulphus  on  Edward  the  Con- 
fessor's digest  of  laws,  61  f. 

Rate-cutting  on  railroads,  207  /. 

Ratification  of  law  by  the  sov- 
ereign, Austin's  theory  of,  183  /. 

Reason  in  matter  of  conduct,  77 

Rebates  on  railroads,  207  /. 

Regrating,  the  practise  of,  205 

Religiosis,  the  statute  de,  106 

Reports  of  adjudged  cases,  Eng- 
lish, Bentham  on  the,  267  f. 

Revolution,  the  French,  an  im- 
pulse toward  uniformity,  317 

Right,  includes  the  just,  163;  not 
correlative  to  ought,  155 

Roman  Catholic  Church,  the,  101 

ff. 

Roman,  jurists,  the,  on  definitions 
in  law,  306;  law,  not  abrogated 
by  barbarian  conquerors,  9 1 ;  the 
sources  and  growth  of,  289  ff. 

Rome,  codification  of  law  in,  2  86 
ff.;  early  legislation  in,  35  ff. 

Romilly,  S.,  accepts  Bentham's 
theory  of  jurisprudence,  268 

Rules  of  conduct,  the,  149  ff. 


St.  John,  S.,  on  the  payment  for 
adultery  among  the  Dyaks,  44 
Sale,  the  law  of,  327  /. 
Salian  Franks,  code  of  the,  92 
Salic  law,  the,  93,  96 


Salvius  Julianus  composes  a 
perpetual  edict,  298 

Savigny,  F.  C.  von,  defines  law, 
134  /.;  definition  of  law  by,  5  f.; 
on  the  expediency  of  codes, 
315;  on  the  unwritten  law,  331 

Science,  definition  of,  175 

Self-help  the  first  means  of  en- 
forcing the  laws  of  custom, 

.  169  f. 

Self-restraint,  no  restriction  on 
liberty,  133 ;  peculiar  to  man, 

147  ff- 

Sheriff,  the  functions  of,  79 

Sheriffs,  etc.,  judges  in  early 
courts,  57  JF. 

Sikhs,  the,  in  the  Punjab,  196  ff. 

Slander  and  libel,  difference  be- 
tween, 243 

Slavery,  the  abolition  of,    214  ff. 

Smith,  E.  R.,  on  the  usages  of  the 
Araucanians,  21 

Society,  the  conditions  of,  in 
early  communities,  22  ff.;  a 
picture  of  early,  39  ff. 

Solon,  the  laws  of,  32  ff.,  42,  88, 
261;  no  lawgiver,  49 

Sophocles  on  the  unwritten  law, 
231 

Sovereign,  the,  delegates  an 
authority  to  command  to  the 
judges,  183  ff.;  the  power  of 
the,  193  ff. 

Sovereignty,  Austin  and  Maine 
on,  315;  Austin's  theory  of, 
refuted,  189  /.;  the  develop- 
ment of,  in  modern  times,  199 
ff.;  theory  of,  discussed  by 
Maine,  187  ff. 

Spain,   history  of  legislation  in, 

113  f- 

Spanish  law  in  Louisiana,  304 

Spencer,  H.,  on  customs  among 
primitive  tribes,  20  /.;  on  the 
ultimate  good,  132 

State,  the  authority  of  the, 
supreme,  179  f.;  a  public  cor- 
poration, 116 

States,  beginnings  of,  24  /. 

Statute  of:  Carlisle  (1309),  the, 
107;  Frauds,  the,  257,  281; 
Limitations,  the,  205,  282  /.; 
Mertpn  (1236),  the,  106;  Prce- 
munire  (1355),  the,  107;  Quid 
Emptores  (1290),  the,  107; 
de  Keligiosis  (1279),  the,  106; 


Index 


355 


Treasons  (1352),  the,  107;  Uses, 
the,  205,  260;  Westminster 
(1275),  the,  106;  the  second 
(1285),  107;  Wills,  the,  259  /.; 
Winchester  (1285),  the,  107 

Statutes,  early,  in  England,  104  /. 

Stubbs,  W.,  describes  the  Consti- 
tutions of  Clarendon,  105  /.; 
on  the  Great  Charter  of  1215, 
100  f.;  on  the  Statute  de 
Religiosis,  106 

Sumptuary  laws,  247  ff. 

Sutherland,  Alexander,  on  com- 
pensation for  injuries  by  pay- 
ment, 43  f.;  on  the  develop- 
ment of  the  moral  instinct,  322 


Tacitus,  on  the  administration  of 
justice  among  the  early  Ger- 
mans, 53  /.;  on  customs  of 
German  tribes,  28;  on  expiation 
for  crimes  among  Germans  by 
payment  of  cattle,  42  /. 

Territorial  law  in  Roman  Em- 
pire after  its  conquest,  92 

Tertullian  cited,  293 

Theodosian  Code,  the,  93  /.,  294 

Thomson,  A.  S.,  on  payment  for 
injuries  among  Maoris,  44 

Tiian  enactments,  the,  232 

Trade,  contracts,  conspiracies, 
and  combinations  in  restraint 
of,  209  ff. 

Treasons,  the  statute  of  (1352). 
107 

Trespass  sometimes  justified, 
158  f. 

Trial  by  jury,  origin  of,  64  /. 

Tribonian  abridges  the  digest  of 
Justinian,  289 

Tribunals,  judicial,  the  establish- 
ment of,  170  /.;  legal,  improve- 
ment of,  in  England,  62  ff.;  of 
present  day,  66  ff. 

"Trusts,"  the,  209  ff. 

Trusts,  law  regarding,  330 

Twelve  Tables,  the,  35  f.,  42,  88, 
261,  289  /.,  292 


Tyranny,  246  ff.;  law  which  is  an 
encroachment  upon  just  liberty, 
135 ;  sometimes  necessary,  261  f . 

Tyrants,  24  /. 


U 


Uncertainty  in  law,  caused  by 
difference  of  opinions,  280  ff.; 
caused  by  imperfection  of  lan- 
guage, 280  ff.;  caused  by  novel 
features  of  transactions,  274  ff.; 
guarded  against  by  codifica- 
tion, 274  ff. 

Uniformity  of  rates  in  railroad 
transportation,  206  ff. 

Uses,  the  statute  of,  205,  260 

Utility,  the  principle  of,  180 


Visigoths,  the  attempt  to  maintain 
their  own  law  in  Spain,  113  f.; 
code  of  the,  93 ;  reduction  of 
the  national  customs  of,  to 
writing,  94 

W 

Wergild,  the,  46,  93 
Westminster,     the     statute     of 

(1275),  106;  the  second  statute 
.  of  (1285),  107 
West  Saxons,  laws  of  the,  61 
Wills,  the  statute  of,  259  /. 
Winchester,  the  statute  of  (1285), 

107 
Women,  married,  law  concerning 

the  rights  of,  259 
Writs,  issue  of,  64 

X 

Xenophon,  definition  of  law  by,  7 
Y 

Yost  on  definitions  in  the  Louis 
iana  code,  305 


Form  L9-Series  4939 


LOS 


UC  SOUTHERN  REGIONAL  LIBRARY  FAClim 


A    000704772     3 


